1935583 (Migration)

[2023] AATA 858

1935583 (Migration) [2023] AATA 858 (27 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Mohamed Ragab

CASE NUMBER:  1935583

MEMBER:Naomi Schmitz

DATE:27 March 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.222 of Schedule 2 to the Regulations.

Statement made on 27 March 2023 at 12:39pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – sponsor had been convicted of relevant offences – significant criminal record – 10 years have lapsed since the commission of the relevant offences – parties have been in a long-term relationship – parties have a young child together – sponsorship approval – decision under review remitted   

LEGISLATION
Migration Act 1958, ss 5F,65, 363
Migration Regulations 1994, rr 1.03, 1.20J, 1.20KC, 1.20KD; Schedule 2, cls 309.213, 309.222

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 which does not allow the identification of an applicant, or their relative or other dependant.

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 Immigration on 24 October 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant (hereafter referred to as the applicant) applied for the visa on 29 June 2018 on the basis of her relationship with her sponsor, the review applicant (hereafter referred to as the sponsor). At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (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 applicant did not satisfy cl.309.222 because the applicant did not have sponsorship approved by the Minister and the sponsorship was not in force.

4. The sponsor appeared via video-hearing before the Tribunal on 22 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant who gave evidence from Khulna, Bangladesh.

5. The sponsor was represented in relation to the review. The representative attended the Tribunal hearing.

6. Various documents were submitted to the Tribunal including:

   a.     The sponsor’s Australian Federal Police (AFP) National Police Certificate (Police Certificate) dated 15 February 2023;

   b.     The birth certificate and Australian citizenship certificate of the parties’ child;

   c.     The parties’ marriage certificate;

   d.     Annotated photographic evidence of the parties’ with family;

   e.     The sponsor’s employment documentation i.e. taxation returns for 2020-2022; pay slips, business registration and various security licences;

   f.     [Occupation 1] identification card;

   g.     Money remittances sent from the sponsor to the applicant;

   h.     Telecommunication records between the applicant and sponsor;

   i.      Various medical evidence;

   j.      Various letters from community leaders and statements from family and friends attesting to the parties’ genuine and continuing relationship;

   k.     Flight tickets evidencing the sponsor’s travel to Bangladesh; and

   l.      Sponsor’s academic [transcript].

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 applicant meets clause 309.222.

   Are the sponsorship requirements met?

9. Clause 309.213 requires that the visa applicant is sponsored by the review applicant, where such person has turned 18; or where they have not, by the review applicant’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in r.1.03 of the Regulations).

10. At the time of decision, this sponsorship must have been approved and still be in force. For visa applications made on or after 18 November 2016 the sponsor must also have consented for the Department to disclose to each sponsored 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.309.222.

11. Approval of sponsorship is subject to limitations contained in r.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 r.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 r.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 r.1.20KC in relation to sponsors convicted of a relevant offence who have a significant criminal record where the visa application was made on or after 18 November 2016.

12. Relevantly in the present case, r.1.20KC(3) provides that the Minister must refuse to approve the sponsorship of a subclass 309 visa applicant if the sponsor has been convicted of a relevant offence or relevant offences and the sponsor has a significant criminal record in relation to the relevant offence or relevant offences.

13. A ‘relevant offence’ is defined in r.1.20KC(2) as an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving any of the following matters:

    (a)  violence against a person, including (without limitation) murder, assault, sexual assault and the threat of violence; 

    (b)  the harassment, molestation, intimidation or stalking of a person;

    (c)  the breach of an apprehended violence order, or a similar order, issued under a law of a State, a Territory or a foreign country;

    (d)  firearms or other dangerous weapons;

    (e)  people smuggling;

    (f)  human trafficking, slavery, or slavery-like practices (including forced marriage), kidnapping or unlawful confinement;

    (g)  attempting to commit an offence involving any of the matters mentioned in paragraphs (a) to (f), or paragraph (h);

    (h)  aiding, abetting, counselling or procuring the commission of an offence involving any of the matters mentioned in paragraphs (a) to (g).

14. Pursuant to r.1.20KD(1) a sponsor has a ‘significant criminal record’ in relation to a relevant offence or relevant offences if, for that offence or those offences:

    (a)  the sponsor has been sentenced to death; or

    (b)  the sponsor has been sentenced to imprisonment for life; or

    (c)  the sponsor has been sentenced to a term of imprisonment of 12 months or more; or

    (d)  the sponsor has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more. 

15. Subregulation 1.20KC(4) provides that the Minister may decide to approve the sponsorship if the Minister considers it reasonable to do so, having regard to matters including the following (without limitation):  

    (a)  the length of time since the sponsor completed the sentence (or sentences) for the relevant offence or relevant offences; 

    (b)  the best interests of the following:

    (i)  any children of the sponsor;

    (ii)  any children of the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned;

    (c)  the length of the relationship between the sponsor and the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned.

16. Subregulation 1.20KD(2) provides that for the purposes of subregulation (1), if a sponsor has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms. Example:  A sponsor is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently.  For the purposes of subregulation (1), the total of those terms is 6 months. 

17. The purpose of the above legislation is to protect visa applicants seeking to enter Australia on a partner visa from being sponsored by people with convictions for child sex or other serious offences indicating that the sponsor might pose a significant risk to the visa applicant or any child in their care. The amendments are also intended to strengthen the integrity of the visa program and improve support to visa applicants by giving the Department the ability to share the sponsor’s relevant offences with the visa applicant, so they can decide whether to continue with the visa application and be able to make this decision based on information that may be relevant to their future safety and well-being. The legislative provisions also allow the Department to refuse to approve the sponsorship for people with serious and violent criminal pasts, and thereby preventing a visa from being granted to potentially vulnerable people, particularly women and children.[1]

    [1] Explanatory Statement, Migration Legislation Amendment (2016 Measures No. 3) Regulation 2016

18. At hearing the sponsor conceded that he had been convicted of relevant offences described in reg.1.20KC(2)(c) and that he has a significant criminal record as defined in reg. 1.20KD.

19. The AFP Police Certificate confirmed that on 30 November 2012, the sponsor was convicted of three charges of Contravening an Apprehended Violence Order and was sentenced on each charge to a head sentence of eight months imprisonment with a non-parole period of three months with each sentence to be served concurrently. The sponsor’s sentence therefore expired on 30 July 2013.

20. The AFP Police Certificate also discloses that on 30 November 2012, the sponsor was sentenced on a charge of Supply Liquor to a Minor to a head sentence of 12 months imprisonment and a non-parole period of three months. Although the delegate’s decision record refers to this being a ‘relevant offence’ and the sponsor gave evidence of the same at hearing, as it is not an offence outlined in r.1.20KC(2), it is not a relevant offence. This was explained to the sponsor at hearing.

21. The issue therefore for the Tribunal to consider is whether it is reasonable, notwithstanding the convictions and the significant criminal record, to approve the sponsorship, having regard to the matters referred to in reg 1.20KC(4) and any other relevant matters arising on the material.

    Background

22. The applicant is a citizen of Bangladesh. The sponsor is an Australia citizen. The parties first met on 21 May 2017, during the sponsor’s visit to Bangladesh. At the time it was common knowledge amongst the sponsor’s family and friends in Bangladesh that he was looking for a new partner after divorcing his first wife in 2010. The parties were introduced by the sponsor’s school friend, who thought the parties would be compatible and arranged a meeting at [a venue], Khulna, Bangladesh.

23. On 22 May 2017, the parties met again and spent the day undertaking social activities. The parties claim that the sponsor disclosed to the applicant his previous marriage and divorce and his significant criminal record for relevant offences and asked if the applicant was happy to continue their relationship. The parties claim the applicant with this knowledge agreed to continue their relationship. Later that day there was a family gathering and the parties agreed to marry and hold a wedding on [date] May 2017 due to the sponsor having a pre-booked return flight to Australia. The applicant’s family consented to the marriage and the parties married on [date] May 2017.

24. In the intervening period, the parties claim they have maintained regular communication via phone and video. The sponsor has travelled six times to Bangladesh to visit the applicant and during this time the applicant has conceived and given birth to the parties’ child. The sponsor was present for his son’s birth [25e] and has recently spent time with the applicant and his son [25f].

25. Travel movement records obtained by the Tribunal confirm the same and are as follows:

    a.Departed Australia on [date] February 2017 and returned on [date]  July 2017;

    b.Departed Australia on [date]  June 2018 and returned on [date]  June 2018;

    c.Departed Australia on [date]  January 2020 and returned on [date]  February 2020;

    d.Departed Australia on [date]  October 2021 and returned on [date]  February 2022;

    e.Departed Australia on [date]  August 2022 and returned on [date]  September 2022; and

    f.Departed Australia on [date]  January 2023 and returned on [date]  February 2023.

    Relevant offences

26. Under summons to produce documents pursuant to s.363(3) of the Act, [a] Local Court provided to the Tribunal three prosecution summaries on which the sponsor was sentenced for relevant offences which disclose the following information.

27. At the time of the relevant offences the victim was aged [age] years and the sponsor was [age] years. The sponsor first met the victim in 2010 and was a previous associate of the victim’s father and would attend their residence regularly. Due to behaviour displayed by the sponsor, namely the sponsor wanting to marry the underage victim, the victim and her father applied for an Apprehended Personal Violence Order (APVO) that was granted and served on the sponsor on 4 June 2011. The victim was named as the protected person. The order was to expire on 15 August 2013.

28. It contained various conditions some of which include, but are not limited to, not to stalk, assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has a domestic relationship; must not engage in any other contact that intimidates the protected person(s) or a person(s) with whom the protected person has a domestic relationship; must not stalk the protected person(s) or a person(s) with whom they have a domestic relationship; not to go within 100 metres of the protected person(s) premises of which they reside or work or other special premises; and must not approach or contact the protected person(s) by any means whatsoever except through the sponsor’s legal representative.

29. Breach one related to an incident at approximately 3:30 pm on [date] September 2012. The victim was at [a] Railway Station on the way home from school when she saw the sponsor waiting on the railway platform. The sponsor approached the victim and said, ‘I want to talk’. The victim replied, ‘I don't want to’. The victim who was in fear began walking down the railway platform. The victim reached the end of the platform only to find the sponsor had continued to follow her. The victim alerted the ticket booth officer who called police. The sponsor was confronted by another male who asked him to leave the victim alone. The victim escaped on a train which pulled into the station. The sponsor attempted to follow the victim but was prevented by a number of males who intervened, and a fight took place. At that time it appeared that the sponsor was the victim. The sponsor accompanied police back to the police station and was asked ‘What happened at the train station’. The sponsor told police ‘I wanted to talk to my girlfriend’. Subsequent checks confirmed an APVO was in place. Police contacted the victim by phone who informed police that the sponsor had approached her at the railway station, and she was so scared she got on the train and went home. When asked by police ‘Why don't you leave her alone’ the sponsor replied, ‘Because I love her I'll never leave her alone’.

30. Breach two occurred three days later at 7:30 pm on [date] September 2012, when the victim's mother drove into her driveway at home. Upon arrival she saw the sponsor standing approximately 10 metres from the front door of their premises where the victim and the victim's mother were residing. The sponsor stated, ‘I just want to talk, I just want to talk to her [victim]’. The victim’s mother immediately became scared and went inside and called the police.

31. Police attended the property at 8:15 pm and observed the sponsor in the middle of the driveway directly adjacent to the property which was no more than 15 metres from the front door. The sponsor stated, ‘I was just walking by’. The victim told police of the existence of an APVO. The sponsor was placed under arrest for breaching the order due to being within 100 metres of the victim’s premises. The sponsor was subsequently interviewed where he made admissions to breaching the APVO and his bail conditions. The sponsor told police the victim was going to be his future wife and that he loved her.

32. Breach three occurred three days later at 8:00 pm on [date] September 2012. The victim's mother was at home when the sponsor rang her mobile and said, ‘Listen I want to talk to you’. The victim's mother told the sponsor ‘You can't call here, you should be in lock up’. The sponsor replied ‘I just want to sort this out amongst similar things’. The sponsor also contacted the victim’s father by telephone and text message to try to discuss the marriage of his daughter to the sponsor. The victim and her family found the continued calls distressing and intimidating and therefore these were considered in breach of the APVO and bail conditions. The sponsor was subsequently arrested on [date] September 2012 for breaching the AVPO and his bail conditions. The sponsor made admissions to police and said ‘I love her I can't help it because I want to marry her. If I have to go to gaol for love then I will’. Police tried to advise the sponsor of the seriousness of his offences but he ‘just laughed’.

    Evidence at hearing

33. At hearing the sponsor confirmed he was previously married. There are no children of this relationship.

34. The Tribunal Member asked the sponsor about his offending for the relevant offences. The sponsor stated the APVO was taken out as a result of previously supplying the victim alcohol. The sponsor was initially focused on telling the Tribunal Member about the mitigating factors which led to his offending and believed the victim was in danger of the mafia [the men from the train station]. The Tribunal Member put to the sponsor that this did not answer the question. The sponsor then stated the breaches broadly involved the sponsor trying to contact the victim at a train station, her house (and being within 100 metres) and text messaging the victim's mother about him marrying the victim. He claimed he was unable to provide much detail due to his confused mental state at the time of the offences and the length of time since the offending.

35. Pursuant to s.359AA the Tribunal Member provided a summary of the sponsor’s offending outlined in [27] to [32] above to the sponsor and explained this would be a reason or a part of the reason for affirming the decision under review, as it raised serious concerns about the sponsor’s treatment of women and lack of respect of the law and therefore the best interests of the visa applicant, which can be a relevant consideration as to whether sponsorship should be approved. The sponsor was asked whether there was anything he wished to say in response and that he may seek additional time to comment on or respond to the information. The sponsor stated that as the offences were committed so long ago, he had difficulty remembering and was highly stressed.

36. The Tribunal Member asked the sponsor whether he had disclosed the offending to his wife, what he had told his wife about the offences and when. The sponsor claimed he told his wife about his criminal record on 22 May 2017. When asked what he had told her, the sponsor replied, ‘What she is required to know for a personal relationship’. The Tribunal Member told the sponsor that she found his evidence unhelpful and evasive and reminded him of the purpose of the legislation in [17] above. The applicant asked for 10 minutes to speak to his representative which the Tribunal Member granted.

1. Upon resuming, the sponsor did not dispute the facts of the offending and claimed he did not have a good recollection due to the significant lapse of time since the offending and being in a poor mental state at the time of the offences. He referred to his ex-wife being kidnapped in Bangladesh in 2007 and suffering post-traumatic stress as a result; that he had various legal proceedings on foot including a complaint to the Australian Human Rights Commission and proceedings in the Federal Magistrates’ Court; and was self-represented at the time. He emphasised that he deeply regretted his conduct and was not proud of his actions. He stated he is highly remorseful and denied having any issues (i.e. disrespect) for women.

2. The Tribunal Member asked the sponsor various questions regarding his personal circumstances and progress since his release and elicited the following evidence which the sponsor relies on as demonstrating that he has made significant progress, that the applicant is not in need of protection and therefore approval of sponsorship should be granted:

   a.The parties have been in a committed relationship for almost six years;

   b.Approximately 10 years have lapsed since the commission of the relevant offences;

   c.The applicant has not committed any subsequent relevant offences. The ‘Enter Intersection-Red Traffic Light’[2] offence was an accident committed in wet weather and heavy traffic conditions;

   [2] AFP Police Certificate dated 15 February 2023 – [a] Magistrates’ Court 18 July 2018 Enter Intersection-Red Traffic Light – Without conviction adjourned to 16 July 2019.

   d.The applicant received mental health treatment whilst in custody, being placed in a forensic psychiatric ward for approximately four months and subsequently presented to [a] Community Mental Health Service upon his release in accordance with the conditions of his sentence;

   e.He has no current mental health issues;

   f.The sponsor and applicant have a [son] who is an Australian citizen who needs his father for his growth and development;

   g.The sponsor has grave concerns for his son and wife’s welfare due to their son being an Australian citizen and therefore a target for kidnappings or ransom threats. The sponsor referred to his ex-wife’s kidnapping in Bangladesh who at the time was visiting family and an Australian permanent resident and the sponsor’s government appointment (and the assumption by outsiders of having government influence or connections);

   h.The sponsor has purchased a property consisting of three bedrooms which can adequately accommodate his wife and son;

   i.The sponsor has provided continual financial support to his son and wife on a regular basis as evidenced by the money remittances;

   j.The sponsor has a hard work ethic and has been gainfully employed balancing three jobs including working for a [Industry 1] company, establishing his own [Industry 1] company and working as an [Occupation 2]. He contrasted this with him being homeless and destitute upon his release from prison;

   k.He is a contributing member of the Australian community paying his taxes;

   l.He has pursued further education, including a [degree] which is almost complete (four remaining subjects). He also has acquired other qualifications including [deleted];

   m.He has been appointed a [Occupation 1] by the Victorian State Government serving the Victorian community. This involves him working weekends, night duty and being on-call;

   n.He has undertaken charity work and fundraising;

   o.He has no previous or existing substance or drug abuse issues (he claimed a previous report was inaccurate);

   p.He has a general good reputation in the community and supported by various cultural community leaders; and

   q.He is committed to his wife and son as evidenced by the six visits to Bangladesh some of which have involved long periods offshore.

3. The applicant gave evidence that she has completed her secondary school education and completed a [degree] at a government college in Bangladesh. The applicant speaks Bengali and has undertaken English language courses. The applicant operates a [shop] in Bangladesh with one employee. The applicant controls the administrative side of the business whilst caring for the parties’ child. The applicant is aware that the sponsor has a criminal record. The applicant conceded she did not want to know much detail and was focused on the present and the parties’ future.

4. The Tribunal Member gave the sponsor a further opportunity to address the Tribunal. The sponsor stated that as intervention orders are largely a ‘foreign concept’ in Bangladesh, he had some difficulty explaining the relevant offences to the applicant but claimed he had always tried to be transparent and had nothing to hide. The Tribunal Member explained the relevant offences to the applicant to ensure she understood the offending and asked with that knowledge whether she wished to proceed with the visa application to which she replied in the affirmative. The sponsor stated that the applicant is highly educated having completing a [degree], a [course] and has also released a [book].

   FINDINGS and REASONS

5. The Tribunal has considered all the evidence carefully, including the parties’ viva voce (oral) evidence at hearing and various documents submitted to the Tribunal. Over nine and a half years have lapsed since the sponsor completed his sentences for the relevant offences (30 July 2013). The Tribunal considers this well passed any reasonable threshold that the legislature would have considered for the application of reg 1.20KC(4)(a) and regards this as a significant period of time on which the Tribunal places some positive weight in favour of sponsorship approval.

6. Of significance, the relevant offences were committed over 10 years ago. The police summaries disclose that the offences were committed in quick succession in the space of approximately one week. There has been a significant lapse in time since the relevant offending, which the Tribunal places in favour of sponsorship approval. The sponsor has not committed any subsequent relevant offences.

7. The parties have been in a long-term relationship of approximately six years and the sponsor has spent significant periods offshore with the applicant and his son and provided them with regular financial support. Although the parties married rapidly after their first meeting, this is not unusual and is in accordance with the cultural norms in Bangladesh and was due to the sponsor’s pre-arranged return flight to Australia. The parties regard their relationship as genuine and continuing, with a mutual commitment to the exclusion of all others. Since their marriage the parties have had a child, who is an Australian citizen. The Tribunal has had regard to the negative impact the separation is having on the parties’ son and the best interests of the child principles.[3] There are no children from any former relationships who would be at risk.

   [3] Article 9 of the Convention of the Rights of a Child – - Accessed 23 Marc 2023

8. The Tribunal accepts that the sponsor has made significant progress since his release from prison, including undertaking rehabilitation (receiving psychiatric treatment), purchasing a property, undertaking further education, being gainfully employed and paying his taxes, being appointed a [Occupation 1], and undertaking charity work. He does not have any current mental health, drug or alcohol issues and has established a good reputation in the community. The Tribunal accepts that the sponsor is remorseful for his offending for the relevant offences. The Tribunal is satisfied that the sponsor has endeavoured to disclose his significant criminal record for the relevant offences to the applicant. The Tribunal is also satisfied that the applicant is aware of the sponsor’s significant criminal record for relevant offences and wishes to proceed with the visa application. The applicant presented as an intelligent and educated woman and the Tribunal does not consider her as vulnerable or in need of protection.

9. On the evidence before the Tribunal the requirements of cl.309.222 are met. 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 309 visa.

   DECISION

10. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.222 of Schedule 2 to the Regulations.

    Naomi Schmitz
    Member