2001198 (Migration)

2001198 (Migration) [2021] AATA 4947 (4 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2001198
MEMBER:Denis Dragovic
DATE:4 November 2021
PLACE OF DECISION: Melbourne
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 of Schedule 2 to the Regulations
·cl 820.221 of Schedule 2 to the Regulations
·reg 2.03A

Statement made on 04 November 2021 at 9:05am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – de facto relationship – application for review of previous refusal remitted on grounds that sponsor pregnant – overseas travel in late pregnancy and stillbirth there – letter provided by hospital not written by attending doctor – date of beginning to live together and length of relationship – documentary evidence, statutory declarations and oral evidence – relationship at time of decision – financial, household and social aspects of relationship – detailed documentation and spontaneous, detailed oral evidence – nature of commitment – IVF treatment and two miscarriages – applicant not holding substantive visa at time of application – compelling reasons for not applying criteria – length and nature of relationship – study, sponsor’s mental health and applicant’s support – applicant offered professional job conditional on completing study – COVID-19 prevalence and restrictions – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65, 359AA
Migration Regulations 1994 (Cth), rr 1.09A(3), 2.03A, Schedule 2, cls 820.211(2)(a), (d), 820.221, Schedule 3, criterion 3001
CASES
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 32
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 11 July 2016 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The applicant in this case has had a long and convoluted engagement with the Department and the AAT. The applicant arrived in Australia in 2010 on a student visa and then in October 2011 applied for protection which was refused by the Department but remitted with directions by the Refugee Review Tribunal. Following the grant of the protection visa in August 2013 it was cancelled by the Department in May 2016 based upon the submission of bogus documents and affirmed by the AAT, but this decision was quashed by the Federal Circuit Court of Australia in May 2020. The visa cancellation case was remitted to the Tribunal to be re-heard. This case was heard by this member and affirmed in October 2021 (AAT [case number 1]).
Another visa review decision is relevant to this review. The applicant and sponsor had their partner visa application initially refused by the Department in February 2017 for reason of not meeting PIC 4020. This public interest criteria was under review for the same reasons that the applicant’s protection visa was cancelled, namely for PIC 4020(1) to be met it requires that there is no evidence before the Minister that the applicant has given or caused to be given a bogus document or incorrect information. Even if this is the case the public interest criterion allows for discretion in compelling or compassionate circumstances. This case was heard at the AAT by a differently constituted Tribunal and finalised [in] July 2019 (AAT [case number 2]). The member in that decision determined that PIC 4020 was met as there were compelling and compassionate circumstances, namely the applicant’s partner, an Australian citizen, was pregnant, and as such the case was remitted to the Department for reconsideration.
Evidence from these earlier cases has been incorporated into this decision in accordance with the procedural rules of the Act.
The delegate refused to grant the visa on the 17 January 2020 based upon the visa applicant not satisfying cl 820.211 because the delegate was not convinced that the applicant and sponsor were in a de facto relationship.
The applicant appeared before the Tribunal on 6 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], the applicant’s partner and visa sponsor.
The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant is the spouse or de facto partner of the sponsor.
Issues of credibility and whether the applicants provided a bogus document
The delegate’s decision focused heavily on the claims by the applicants that the sponsor was pregnant and that subsequently the sponsor lost her child. It appears that the delegate had some doubts over whether the sponsor was pregnant at all. Specifically, the delegate wrote:
Departmental records indicate your sponsor travelled to Pakistan on [Date 1] October 2019, at 37 weeks gestation to return to Australia on [Date 2] October 2019. Departmental records indicate you remained in Australia, while your sponsor was offshore.
Travel advice from [Airways 1] document no airline travel for expectant mothers at 36 weeks gestation. If you are travelling after 36 weeks, you must be medically cleared by the airline before your travel.
On 21 November 2019, your representing migration agent notified the Department of your sponsor’s stillbirth. The Department requested further information to substantiate this claim.
On 10 December 2019, your representing migration agent supplied a purported letter from [Dr B] of [Hospital] in Lahore Pakistan advising the stillbirth of a foetus at 37 weeks.
While this is a sensitive period for you and your sponsor, it should be noted your current Combined Partner (Subclass UK 820/ BS 801) Visa application was refused on PIC 4020 (4) grounds and was remitted by the AAT as your sponsor was pregnant and due to give birth in October 2019. You and your sponsor both agreed to provide Deoxyribonucleic Acid (DMA) evidence to confirm parentage if sought.
It is unclear why your sponsor needed to travel so far into her pregnancy. While I note a purported letter has been supplied by a doctor in Pakistan, I note that there has been no follow up information from Australian medical professionals regarding your sponsor’s circumstances. I acknowledge this would be a difficult situation for you and your sponsor, however I consider that the circumstances behind your sponsor’s travel at such a late stage in her pregnancy and the subsequent information provided to be highly unusual and leads me to have significant concerns regarding your application. These concerns are heightened due to your previous dealings with the Department where you have been found to have been provided false and misleading information in order to secure a positive migration outcome.
What was omitted by the delegate from their decision record but available and known to the delegate was that the Department had sought to verify the letter from [Dr B] through Post. The letter from [Dr B] included the following:
Patient [Ms A] at 37 weeks of pregnancy (received IUD) had to expel a dead female fetus of weight 3.1 kg FLB complete delivery of placenta + memberane of weight .20kg. Dead baby handed over to attendants. Time of delivery [deleted]. Date of delivery [10]/2019
The following is the record of the effort to verify the letter:
In order to verify the authenticity of the letter post contacted [Dr B] and she was approached with the soft copy of letter. After some hours, she contacted post and confirmed that the provided letter is not hers. She confirmed that signatures on the letter is not hers and someone has misused her letter pad.
At the hearing this was put to the applicants under s 359AA. I acknowledged at the outset that it was a difficult conversation and gave some leeway in how it would proceed. The applicant and sponsor were not aware of the document and as such requested an adjournment. When Post’s response was provided to the applicant and sponsor the sponsor responded that she lost her child in a country where she didn’t know how the system works. She said that she went through nine hours of contractions, but it felt like forever. She said that she only had her friend with her at the time. She described the look on the face of the obstetrician as being a dark look that immediately told her that the situation she was facing was not good. She said that she couldn’t remember much other than screaming. She said that the baby was taken away from her straight away. She said that she was given the letter at the hospital and that she just took it assuming it was a discharge letter. She said that she didn’t know what happened with regards to the letter.
During the given of this evidence the sponsor was clearly distraught by the recollections. I note that Pakistan hospital bureaucracies are not the same as in Australia. Although the delegate did not specifically provide a view on what happened it seems that they came to the conclusion that either there was no child or that the child was born and continues to live in Pakistan.
There is overwhelming evidence that there was a child including substantial medical reports in Australia as discussed further below, the conclusion of the previous Member who remitted the case based upon compelling reasons and photos of a heavily pregnant sponsor.
That someone other than the attending doctor may have used a medical pad to allow the sponsor to leave the hospital and grieve the loss of her child is wholly believable and not implausible. That there is overwhelming evidence that the sponsor was pregnant with child and travelled to Pakistan prior to her birth, as discussed further below, convincingly suggests that the child was delivered in Pakistan. The explanation given by the sponsor regarding the letter is compelling.
Regrettably, it seems that the delegate made a decision on this visa in part based upon evidence that was available but not shared with the applicants who could have responded to it but did not have the chance to.
I find that the sponsor did deliver a still birth child in Pakistan. I find that the document provided by the applicants to the Department was not a bogus or fraudulent document. I also find the applicant and sponsor to be credible in the evidence they have provided and as such unless otherwise stated I accept their evidence as fact in the remainder of the decision.
Were the parties in a de facto relationship in the period 12 months prior to lodging the application?
Clause 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, 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 to be the de facto partner of the sponsor who is an Australian citizen.
For de facto relationships there is an additional requirement that both sponsor and visa applicant are over 18 years of age (r.2.03A(2)) and the Minister must be satisfied that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application in r.2.03A(3)(b).
The application was lodged on the 1 July 2016. As such I need to be convinced that the applicant was in a de facto relationship as of 2 July 2015 and through to 1 July 2016.
The applicant and sponsor claim that their relationship began in 2012. The applicant described in a statutory declaration:
My relationship with [Ms A] started at the beginning of 2012. We met at a [sport] place through a mutual friend who was there at the time. As soon as we saw each other we instantly began to talk to each other. After that night I asked [Ms A] out and we went on a few dates and spend a lot of quality time with each other. We also started going out with friends to various events such as [festivals] and [sport] games.
At the hearing the applicants gave evidence of the addresses in which they have lived. Their oral evidence indicates that their life of living together began in mid-2012 in an address in [Suburb 1]. Problematically this is not reflected in Centrelink records which show the visa applicant as living in a separate address in [Suburb 2] since 2013. When this was put to the applicant, he said that he did not change his registered address when he moved out as his friends continued to live there. I note that through to the date of the Centrelink extract, 17 January 2020, the applicant had not updated his address despite the address on record with the Tribunal differing from the one with Centrelink. Considering that the applicant has had no reason to engage with Centrelink in later years and that he has registered a different address with the Tribunal to the address that lingers with Centrelink I give weight to the applicant’s explanation.
The applicant and sponsor provided copies of their drivers’ licenses which showed the same street number and address. The visa applicant’s licence expiry date is [January] 2017. The applicant claimed at the hearing that it was a three-year license and as such it would have been registered on [January] 2014. I accept that it was a three-year licence as had it been five years, the next iteration available for licences, it would have taken the date back to before even the sponsor had moved into the address according to Centrelink records. I give substantial weight to both the applicant and sponsor having registered addresses with VicRoads dating back to 2014.
The applicant submitted a [Airways 2] flight booking and ticket for a return trip to Sydney from Melbourne with the two passengers listed as being the applicant and sponsor. The date for the travel is 24 August 2012 with a return on 26 August 2012.
I note that in a statutory declaration a friend of the sponsor wrote that she had met the sponsor in 2013 and that she met the sponsor’s partner at a dinner party also in 2013.
The sponsor provided a health care card with a start date of 3 December 2012 showing her address as the same address as that shown on the visa applicant’s driver’s licence and what they were claiming to have been their common address since late 2012.
The applicants did not apply for the partner visa until 2016 despite their relationship beginning in 2012 and they had lived together since late 2012. The reason given was that the applicant had applied for a protection visa in October 2011, was granted the visa in August 2013 and had applied for Australian citizenship in August 2014. The applicant’s protection visa was cancelled in May 2016 which prompted the application for the partner visa.
I note that the cancellation was appealed to the Administrative Appeals Tribunal in May 2016 at which time the address given by the visa applicant was the same address as he has claimed to have shared with the sponsor. Submissions made at the time refer to the visa applicant being in a relationship with the sponsor. For example, the sponsor’s psychologist mentions ‘On a few occasions she was observed as teary, especially when she talked about her fears of her partner's absence to go off shore to put the spouse application. She also mentioned that she believed that if [the applicant] would go overseas he may never come back.’
The applicants provided two [Provider] Electricity accounts in their joint names covering the relevant twelve-month period prior to the application. The bills dated 10 April 2016 and 27 January 2016 are addressed to both applicants and to the same address as the other material provided and mentioned above. Similarly, two bills for gas from [Provider] were provided to the same address, they were dated 11 May 2016 and 9 January 2016.
The visa applicant also provided phone records which were addressed to the same address as had been provided in other submissions. The phone records also showed near daily calls to his partner’s phone number.
·[Mobile phone] Bills covering March 2016 to June 2016 in the name of [the applicant]
·[Mobile phone] bill issued May 2015 to July 2015 in the name of [the applicant]
The applicants submitted two statutory declarations by supporting witnesses in relation to a partner visa. These declarations cover the relevant period being 12 months prior to the date of application. The declarations speak to the genuineness of the relationship. They include people who know both the sponsor and the visa applicant.
There is no evidence that the relationship is registered under a relevant State or Territory law or that the sponsor held, holds or is applying for a permanent humanitarian visa, so they must meet the 12-month requirement.
Noting that I have given weight to the applicants’ oral evidence regarding their living arrangements prior to the visa application including third party documentary evidence in the form of the drivers licences, health care card, Tribunal records and utility bills. I note the statutory declarations by friends and phone bills and even a contemporaneous psychologist’s report that affirm the existence of a relationship. Due to the availability of extensive independent information, I am satisfied that the applicants were in a de facto relationship for at least the period of 12 months ending immediately before the date of the application. For these reasons I am satisfied that the applicant meets the criteria prescribed in reg 2.03A.
I am satisfied that during the preceding 12-month period this relationship meets the statutory threshold of a de facto relationship for the reasons of the evidence noted above along with the material discussed further below and therefore meets cl 820.211(2)(a).
I am satisfied that the visa applicant was sponsored as required by cl 820.211(2)(c).
I am not satisfied that visa applicant was the holder of a substantive visa as per cl 820.211(2)(d). This requirement has an exception if satisfied that there are compelling reasons for not applying those criteria. Before considering this, I turn to whether the applicants were in a de facto relationship at the time of decision.
Are the parties in a de facto relationship at the time of decision?
'De facto partner' is defined in 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).

In forming an opinion whether they are in a de facto relationship consideration must be given 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 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Financial aspects of the relationship
At the Departmental stage the applicants submitted bank statements showing common expenditure from the period of July 2016 through to June 2019. The applicants provided a pre-hearing submission to the Tribunal that continued the statements from the same bank account through to 30 June 2021. The bank statements showed regular expenditure against two different cards.
The applicant wrote in a statutory declaration that they shared the expenses including rent, electricity and other bills. At the hearing the visa applicant said that he would sometimes pay for expenses that were for the sponsor and vice versa.
The bank account shows regular expenditure representative of a couple. They confirmed that they each have personal bank accounts. These were not provided to the Tribunal nor were they requested. The sponsor said that she was receiving income from student payments while she is finalising her [course]. The visa applicant said that his income goes into his personal account. The sponsor said that they share each other’s bank cards including those from their personal accounts.
They both discussed some unauthorised transactions on their joint account. That they both knew of the issues and this was raised spontaneously leads me to give it weight.
The sponsor said that currently while she is studying the visa sponsor pays for ‘98 percent of everything’.
The applicants explained that they tried to get a home loan but because of the visa applicant’s visa status they could not access a loan.
The applicants provided a Tenant History from [Real Estate] in both of their names for a property in [Suburb 3]. The tenant history shows that they had lived there from November 2016 through to October 2019.
The applicants submitted utility statements in both of their names from 2016 through to 2019 in the Delegate’s file which was updated in the Tribunal submission to include utility bills from as recently as March 2021. I noted at the hearing that the electricity usage of some bills was aligned with one person living in the house according to the standard usage charts. When this was put to them at the hearing, they explained that they often spend time in just one room. They have only one TV. The visa applicant said that he spends a lot of time at work doing weekend shifts. He is also studying and doing placements which means that he is not often home.
In turning my mind to the financial aspects of the claimed relationship I found the answers provided by the applicants at the hearing to be convincing. That the applicants have a joint bank account as well as private ones which they otherwise share is not unusual. Their ability to respond to concerns about the amount of electricity usage and common knowledge of unauthorised usage of their account weights heavily in their favour. They have provided evidence of payments for their rent at an address that aligns with other evidence. Overall, I give considerable weight towards the view that they are in a de facto relationship.
Nature of the household
The applicant and sponsor have claimed to have endeavoured to have children. On two occasions this was not successful. Considerable medical evidence from [Medical centre], [radiology], their general practitioner, [medical imaging] and the sponsor’s obstetrician was provided to support their claims that the sponsor was pregnant in 2019. In addition, the documentation from [Medical centre] lists the visa applicant as the partner.
The same [Medical centre] documentation lists a miscarriage in 2017.
There is no reason for me to doubt the documentation submitted which was substantial, detailed and reflected similar documentation relating to pregnancy that I have sighted in Australia.
Throughout the hearing minor disagreements between the sponsor and visa applicant arose that exhibited the genuineness of the relationship. One example is a difference of opinion between the visa applicant and sponsor on who does the ironing. When asked about the electricity usage in their house in reference to the electricity bill charts mentioned earlier, the visa applicant said that he is the only one who irons the clothes. As he said that the sponsor’s expression instantly changed in awe that he would say that. He immediately corrected it by saying that what he meant was that only his clothes needed ironing and then explained that the sponsor does his ironing. His correction was said with some laughter because of the sponsor’s response to this miscommunication. The sponsor then took the opportunity to emphasize, also light-heartedly, that she did all of the ironing by saying that two days ago she was up late ironing ‘every bit of clothing which was two baskets’ and she explained that she does this because she hates the way the visa applicant does the ironing and referred to the line down the pants that she prefers to see. I give considerable weight to the applicant’s relationship based upon these spontaneous answers.
With regards to the sharing of housework, the sponsor wrote, ‘from the moment we moved in together we agreed on the house duties and responsibilities. As we live in a shared accommodation, we have our own room where we share a queen size bed together. I try keeping the room clean by vacuuming, folding clothes, making the bed every day and more. [The applicant] does help me to maintain the house clean. We share the responsibility of cooking and we go shopping together.’
I asked the applicants a series of questions about their living arrangements. As the hearing was conducted by video, I asked the sponsor to write her answer down on paper and I asked the visa applicant, who was in another room, to tell me the answer aloud. I then asked the sponsor to hold up the piece of paper where she had written the answer.
The question I asked first was the colour of their bedsheets that they slept in the night before the hearing. The visa applicant said that the blanket is red, and the sheet is blue. The paper held up by the sponsor had written on it ‘red blanket’. She did not answer the question about the sheet.
I asked another question. Where does the visa applicant keep his toothbrush. When I asked this question, they both laughed at the same time. The visa applicant said the answer will be embarrassing. He said that he keeps his toothbrush in the shower. The sponsor had written shower. She then went on to provide an extended answer about the challenges she has had in getting the visa applicant to stop leaving the toothbrush in the shower and all of the alternative options available to him to leave it elsewhere. This response lasted for quite some time. The spontaneity of these answers and the reactions are very convincing, and I give considerable weight in favour of their relationship for this reason.
Noting that the applicants have had two miscarriages, share the household chores in after having lived together for several years, provided accurate answers to questions about their living arrangements and importantly gave spontaneous answers with detail and colour to issues that would naturally arise between a couple such as disputes over where a toothbrush is kept or who does the ironing leads me to give considerable weight in favour of the genuineness of their relationship.
Social aspects of the relationship
The visa applicant and sponsor have provided the following evidence to the Department in support of the social aspects of their relationship (folio locations related to the Departmental file):
·Range of photographs depicting the couple together and with friends – all are undated and do not indicate where the photos were taken. Although some appear to be in Sydney and Dream World (pp. 228 – 312 & ff 260 – 28 of Department file)
·Range of colour photographs of the couple at pp. 632-636 & ff. 58 – 57. Some appear to be colour photos of the black and white photos provided in earlier folios of the Department file, none of the photos are dated or advise of locations.
·Photos of the couple showing a pregnant sponsor – undated in a bathroom (p 313 & f. 27)
·Statutory declaration by a supporting witness in relation to a Partner or Prospective Marriage visa application (Form 888). Declared by [Mr C] on 15 June 2016 – Australian citizen (DF page 760, f. 4).
[Mr C] says that he has known the known the Visa Applicant for about two years, and first me him through the [college] where they studied together. He says he met [Ms A]/Sponsor through the visa applicant, and that she has also worked with him as a [Occupation 1] for about one (1) year. [Mr C] believes that they are in a genuine de facto relationship. He describes the Sponsor as being supportive of the visa applicant, says that they go to lunch together, and that the couple have been together since he has known them both.
He describes the visa applicant as career focused and says that the couple care for each other. He says that couple are saving and studying for the future and that they plan to buy a house together.
·Statutory declaration by a supporting witness in relation to a Partner or Prospective Marriage visa application (Form 888). Declared by [Ms D] signed 21 June 2016, Australian citizen (DF page 768, F. 3).
[Ms D] says she first met the sponsor in 2013 at a mutual friend’s gathering, and they became good friends. She met the visa applicant in 2013 at a dinner and was told that the sponsor and the visa applicant had been together since 2012. She believes that they are in a genuine de facto relationship as they are always together, the sponsor sends text messages to the visa applicant, they attend all social gatherings together, she has been told about and seen their photos of the trip to Sydney and she is aware of their future goals.
I asked why the sponsor’s parents were not attending the hearing and had not provided any submissions. She said that they have their own stresses. Her father has [disease] and her mother has some health concerns and she has a younger brother who has [Condition] who has [Symptoms] that don’t allow him to drive. She said that stress and anxiety can trigger them severely. She said that her father does not sleep for days when minor issues are raised with him. As the sponsor described her relationship with her parents and the reasons why she has not asked them to appear I found the answers to be plausible and convincing but nevertheless concerning that those closest to the sponsor were not there to provide evidence. In particular, I find it concerning that one of the reasons given by the sponsor to travel to Pakistan to give birth was that her parents would be unable to provide support. While reasons were given, including as noted, her parents having substantial challenges that would not afford them the flexibility to provide the necessary support, I am concerned that the opportunity was not given to the Tribunal to test this evidence.
While acknowledging the photographic evidence provided by the applicants, this nature of evidence carries little weight as it can be easily staged. Despite the statutory declarations provided, I note that no witnesses were offered and in particular the sponsor’s parents were not invited despite being requested to appear as witnesses. For this reason I place little weight in favour of the relationship with regards to the social aspects.
Nature of persons’ commitment to each other
The applicants have spoken about having three children together. That they have tried on two occasions but unfortunately faced a tragic outcome leads me to give considerable weight towards the nature of their commitment.
The sponsor wrote in a 2016 statutory declaration:
I definitely cannot live without [the applicant] in my life; I wouldn't be able to wake up each day knowing that he is not with me. I strongly believe I would be severely depressed and unstable without [the applicant] with me for the rest of my life. I love him and we definitely plan to be together forever. I have no doubts that our relationship is genuine and continuing.
The visa applicant in his 2016 statutory declaration wrote:
Our relationship is extremely strong, and I am completely committed to [Ms A]. We have planned our lives together, we have spoken about future goals such as family life, how many children each would like to have, the sex of the children etc. We want to have three children or more; the number does not matter as long as they are healthy, and we can provide for them. We have been told that we are inseparable and that is right, I cannot see myself without [Ms A] in my life. I love her more than anything and I cannot imagine not seeing her every day, every morning and night of my life. My life would not be the same without her. Our relationship is genuine and will be continuing forever.
The sponsor travelled to Pakistan when she was 37 weeks pregnant to deliver her child with the support of the applicant’s family. There is no doubt that she was pregnant. There is no doubt that she travelled at this time. I am satisfied that the applicant did not travel for any other reasons than the reason given by the sponsor which was to travel to Pakistan to be with her partner’s family as she weened her child during the first few months. I give some weight in favour of the nature of the relationship based upon the sponsor’s willingness to travel while heavily pregnant to delivery her child together with her partner’s family.
I recall that during the hearings for the visa applicant’s separate matter, the visa cancellation, the sponsor accompanied him at both hearings. At those hearings she was visibly distressed with the prospect of his visa being cancelled. She provided evidence with regards to their relationship and the impact that separation arising from the cancellation of her visa would have on her.
I give considerable weight to the nature of the relationship arising from their two attempts at having a child, the sponsor’s willingness to move to Pakistan, their dependence upon each other as expressed through statements but also as evidence when presenting evidence in this case and the other matter. I also give weight to the length of the relationship which began in 2012 and has continued now for nearly ten years.
I find that there are no other relevant circumstances of the relationship.
I am satisfied that the parties are not related by family.
Based upon the above discussion and findings, I am satisfied that at the time of application and decision the applicants meet r 1.09A which sets out arrangements for the purpose of determining whether the relationship was genuine and continuing, they had a mutual commitment to a shared life together to the exclusion of all others and they did not live separately and apart on a permanent basis for the 12 month period through to the date of the application. As such they therefore satisfy s 5CB(2) at the time of application.
I am satisfied that the visa applicant continues to be sponsored.
Therefore, the applicant meets cl 820.221.
Does the applicant meet 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 in the present case 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 in the present case 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 relevant day in this case is when the applicant last held a substantive visa. The applicant’s protection visa was cancelled on the 17 May 2016. The applicant applied for this visa on 1 July 2016.
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 applicants’ representative provided submissions with regards to the compelling reasons upon which the applicants rely upon. The reasons were:
a)The length and nature of the relationship;
b)The Mental health considerations of the applicant and sponsor;
c)The history of hardships endured;
d)The nature of support the applicant and sponsor provide each other;
e)Future considerations and bearing on joint life;
f)The circumstances of COVID-19 in Pakistan;
As I have found above, the applicant and sponsor have been in an exclusive relationship spanning over 9 years. I accept that the duration of the relationship, provides context as to the degree of hardship that would be suffered by the couple were they to be separated. I also accept that separation under the current circumstances of ongoing closed borders for non-immediate members of the family unit and air flight connections only between limited countries will hamper their ability to see each other were they to be separated.
Psychologist reports were submitted for both visa applicant and sponsor. In summary,
The Applicant: ‘is suffering from PTSD, Depression and Anxiety, and has experienced bouts of hopelessness, uncertainty, insomnia, frequent headaches, nausea, spinning of head, racing thoughts and restlessness.’
The Sponsor: ‘is suffering from high levels of anxiety, affected motivation and emotional regulation, intrusive negative thoughts, depression, adjustment disorder, insomnia, headaches, affected appetite, poor concentration and attention, poor memory and episodes of sadness.’
The reports describe the possible consequences of separation including deterioration and aggression of their current diagnoses, specifically it was noted that physical separation would affect the sponsor’s mental health severely and that repatriation to Pakistan would make it challenging for the visa applicant to receive adequate mental health treatment in Pakistan.
The applicants, particularly the sponsor, are claimed to continue to suffer trauma from the earlier described traumatic pregnancy related experiences. It is claimed that separation will lead to continuing isolation and negative rumination over the loss of her child.

The applicant and sponsor have shared an extensive part of their lives over the past 9 years. Relying and depending on each other in various aspects of their joint life. Specifically, submissions were made explaining how the applicants rely upon each other:
42. He is her sole adolescent relationship to which she first began when she was 19 years old. She has grown up and developed with the Applicant since the inception of their relationship, and is inseparable from the Applicant during their lengthy cohabitation.
43. The dependance the Sponsor has on the Applicant is far more onerous than that of other relationships. Separation, or denial of the support the Applicant inherently provides through his physical presence, will lead to adverse effects on the Sponsor’s mental health, and will jeopardise various aspects of her life.
44. As reiterated above, both Applicant and Sponsor have shared mutual distressing events throughout their relationship, the events of which concern both Applicant and Sponsor directly. The nature of support in relation to these events cannot be adequately received from others.
45. As provided for at hearing, the Sponsor is currently completing her studies and has been limited in obtaining placement/ employment in her respective field [due] to the COVID-19 restrictions. The Applicant having completed studies in the same field studies with the Sponsor and both assist each other in the completion of their courses.
46. For the time being, the Sponsor relies heavily on the Applicant for financial support. The Applicant is currently employed at [Workplace] as a [Occupation 2] (Annexure C) under the umbrella of [Employer 1]. He offers financial assistance in the form of payment for their rental property, day-to-day living expenses, and also provides funds for the Sponsor to have monetary freedom during what has been a difficult time for full-time students.
47. The Sponsor has reported that she relies on the Applicant to a greater degree than that of her family. At hearing, she indicated that her family members are pre-occupied with the assistance and care of her older brother due to his diagnosis, and would be unable to provide her the assistance required, given her unique hardships she has faced.
48. The Applicant does not have any immediate family member’s resident in Australia, and relies solely upon the Sponsor for emotional support and assistance in day-to-day duties.
49. In the circumstances it is more than likely that the Sponsor will be unable to receive the extent of support from other avenues, if the Applicant’s departure from Australia is contemplated.
50. Essentially, the nature of support provided between the couple is multi-faceted, is unable to be provided by any alternative means or by other, is unable to be provided if a physical separation is contemplated, and the denial of the multi-faceted support will amount to hardship of a compelling nature.
Regarding the impact of separation on future plans they have individually and as a couple submissions were made that the visa applicant has been offered upon completion of his bachelor’s degree in [Job sector] a job as a [Occupation 3] with [Employer 2] starting from 31st January 2022 (evidence was provided of this offer). It was submitted that an extended period of time away from Australia will deny the applicant an opportunity to enter into the industry. Similarly, the sponsor’s progress in her [course] will be impeded if the support the applicant provides stops. The applicant would be unable to financially support her from abroad, as Pakistan’s economy has taken a large hit due to COVID-19, contributing to large scale unemployment.
Extensive information was provided regarding the situation of COVID-19 in Pakistan which would pose a risk of harm to the visa applicant if he had to return.
Taking all of the above submissions and circumstances into account and noting that the applicants have a genuine relationship I am satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl 820.211(2)(d)(ii).
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
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 of Schedule 2 to the Regulations
·cl 820.221 of Schedule 2 to the Regulations
·reg 2.03A
Denis Dragovic
Senior Member

ATTACHMENT - Extract from Migration Regulations 1994
1.09A     De facto partner and de facto relationship
(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.
Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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.

[2021] AATA 4947

4 November 2021

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