2004843 (Migration)

[2023] AATA 4514

2004843 (Migration) [2023] AATA 4514 (29 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE: Mr Christopher Levingston(MARN: 9301108)

CASE NUMBER:  2004843

MEMBER:Donna Petrovich

DATE:29 November 2023

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(2)(a) of Schedule 2 to the Regulations

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

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

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

Statement made on 29 November 2023 at 5:24pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation requirement – compelling circumstances – sponsorship permission less than five years after a Partner visa application – more than five years have passed at the time of decision – child born of the relationship – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.03, 1.15, 1.20

CASES

He v MIBP [2017] FCAFC 206

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) (the Act).

2. The applicant applied for the visa on 12 June 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(4) of the regulations.  It was the finding of the delegate that the sponsor had exceeded the sponsorship limitations under cl 1.20J(1) of the Regulations having previously sponsored 2 other applicants on 2 March 2000 and 15 April 2008.  The delegate found that both sponsorships had resulted in the grant of Partner visas and was not satisfied that compelling circumstances existed to waive the sponsorship limitations in accordance with cl 1.20J(2) of the Regulations.

4. The applicant appeared before the Tribunal on 21 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [the Australian citizen sponsor].

   Background

5. The applicant first made contact with the sponsor when he noticed her on a [Facebook] [page] they both followed.  He saw her, thought she was very attractive and requested that she be his friend.  At that time the applicant was living in Jaipur, India with his family and [studying]. He had not been married previously.

6. The sponsor and applicant began chatting on facebook messenger.  In May 2014 they started talking on WhatsApp when the applicant asked the sponsor if they could go out.  They talked for long period of time each day.

7. The applicant applied for a student visa to Australia.  When he arrived, the sponsor picked him up from the airport and they commenced living together from [January] 2016.

8. He did not complete his [course] in Australia because of his [medical condition] and financial stress.  The applicant deferred the course and hopes to resume studies in the future.

9. He currently works as [an occupation 1] for [Employer 1].

10. The sponsor has been married previously.  She divorced in 2014.  Her prior arranged marriage broke down because of family violence that she experienced at the hands of her first husband.  She took out an Intervention Order against her former husband as she feared for her safety and that of her parents (who lived with her).

11. The sponsor also claims that she was not the sponsor of another individual.  Rather, the sponsor maintains that she was the victim of identity theft and fraud at the hands of a homeless Indian student that her mother had taken into their home out of pity. They subsequently became close to him and his family in India (treating him as a family member).

12. The sponsor told the Tribunal that he had asked her and her mother to sign forms which would enable him to obtain permanent residency.  He used these forms to support his sponsorship claim.

13. The sponsor claims that she had no knowledge of this fraud until she was notified by her previous agent. 

14. Both she and her mother subsequently provided statutory declarations to the Department advising that she had not been a sponsor of this individual but that this was a fraud perpetrated on her.

15. The applicant and sponsor have lived together continuously for 7 years.  The couple now have a child together who was born in [specified year].  Their Australian citizen child is [specified age] and has a [medical condition 1] requiring her to [use specified equipment] for 23 hours a day and the full- time care of her mother.  Consequently, the sponsor cannot work outside the home.

16. The applicant is the sole income earner for the family.  He provides financial and emotional support to his wife, child and mother- in- law (who suffers from [medical condition 2]).            

17. The applicant was represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue is whether the applicant meets cl 820.221(4) and the sponsorship limitation in cl 1.20J(1) of the Regulations resulting in a finding that the sponsorship should be approved.  If it is found that the sponsor does not satisfy the sponsorship limitation in cl 1.20J(1), the question arises as to whether cl 820.221(4) is met on the basis that compelling and compassionate circumstances exist justifying the waiver of the sponsorship limitation in accordance with cl 1.20J(2) of the Regulations.

    Whether the parties are in a spouse or de facto relationship

20. Clauses 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 spouse of the sponsor who is an Australian citizen.

21. ‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

22. In this case there is some doubt over the ability of the sponsor to sponsor the applicant.  This is because the Department concluded that she has previously sponsored two other applicants resulting in the grant of Partner visas on both occasions. 

23. The sponsor explained the circumstances in relation to one of the sponsorships and maintains that there is some doubt about the legitimacy of this sponsorship.  The sponsor alleges that the sponsorship was not legitimate and that the applicant in question had acted fraudulently.  In particular, the sponsor alleges that the prior applicant was a boarder at her mother’s home and that he had obtained her signature through deception.

    Are the parties validly married?

24. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The TribunaI heard that the couple had an initial betrothal ceremony when the applicant and sponsor visited [a lcation] in Jaipour.  They had gone there to seek approval from the sponsor’s parents and a blessing of their relationship (which is tradition).  They already had the blessing of the sponsor’s parents in Australia.  Upon arrival they were greeted by the whole family, including the applicant’s parents, his grandparent and his siblings.  The ceremony had been arranged and took place on the day.  The applicant and sponsor told the Tribunal that they were surprised but happy. 

25. They also had a civil wedding ceremony in Melbourne [in] October 2016.  This ceremony was attended by the sponsor’s parents, her best friend and her husband.  Afterwards, they celebrated at an Indian restaurant.  A Marriage Certificate and photographs of the wedding were provided in evidence to the Tribunal.  On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

    Are the other requirements for a spouse relationship met?

    Financial aspects of the relationship

26. The Tribunal heard that the couple live in a home purchased by the sponsor and that the applicant pays his full wage earned as [an Employer 1 occupation 1] into their joint bank account.  The applicant told the Tribunal that he pays the family bills including the mortgage and shops for groceries as the sponsor cannot work.  The sponsor is unable to work outside the home because she cannot leave their daughter due to the child’s age and [medical condition 1].

27. The Tribunal was provided with household bills and joint bank account statements.  The Tribunal heard that they were managing financially, and that the applicant worked 6 days per week.  Testimony was provided that like all families they were faced with the increasing cost of living including high interest rates, which placed them under some pressure.

28. The Tribunal has considered the evidence and gives some weight in favour of the applicant.  There appears to be a genuine pooling of finances and sharing of financial resources by the couple.

    Nature of the Household.

29. The couple live in a home purchased by the sponsor.  They have shared the home with the sponsor’s father (who is now deceased) but continue to live with the sponsor’s mother (who suffers from [medical condition 2]).  The couple share the care of their young daughter.  The applicant looks after his daughter when he comes home from work.  This gives the sponsor some time to catch up on other household responsibilities and to take some time for herself.

30. On weekends they share household responsibilities including cleaning and the applicant shops for groceries.

31. Together they attend regular specialist visits with their daughter and other doctor appointments.

32. The Tribunal has considered the evidence provided prior to and during the hearing, placing some weight in favour of the applicant.  The Tribunal finds that there is genuine care and support for their young daughter, as well as a sharing of household duties, by the couple.

    Social aspects of the relationship

33. The couple told the Tribunal that prior to their child being born, they often went out with friends for meals, bowling or shopping.  But since their daughter’s birth, they spent much more time at home, with friends often visiting them in their own home.  They explained that this was much easier for them.

34. On Sundays they attend temple together where they do most of their community socialising.

35. The Tribunal in considering the evidence finds that there appears to be a general acceptance by their family and friends that they are married, with a shared commitment to each other and their child. They regularly attend temple together and are accepted in their own community as being a couple.  The Tribunal finds the witness evidence to be credible and consistent, placing strong weight in favour of the applicant.

    Nature of the persons commitment to each other.

36. The couple have been married since [October] 2016.  They have cohabitated since the applicant first arrived in Australia in 2016. 

37. The sponsor was previously in an abusive arranged marriage where she was the victim of family violence.  She told the Tribunal that as a result she was reluctant to commence another relationship.  The sponsor went on to say that she is now completely happy and supported in her current relationship with the applicant. He has not been married previously.  The applicant told the Tribunal that his wife and child are the most important thing in the world to him.

38. They have maintained their marriage for 7 years and had established their relationship in 2016.  They told the Tribunal that in this time they have not spent any time apart.

39. The Tribunal accepts the evidence that the couple cohabitate, with the applicant paying the mortgage and all family expenses.  They now have a child together.  The child requires additional support because of her physical condition and treatment needs.  This additional support and treatment assists their child’s further development. The Tribunal accepts that the couple see the relationship as long term.  It is apparent to the Tribunal that they draw emotional support and companionship from each other. The Tribunal places weight in favour of the applicant.

    Any other circumstances of the relationship

40. The sponsor explained to the Tribunal that she had become aware that she had been named as a sponsor of an individual (who obtained her signature under false pretences).

41. He was a student who had been selling door to door.  Her mother took him in because he claimed to be homeless.  The sponsor’s mother befriended him as he was from the same region as her.

42. He became a trusted member of the family.  He asked that his permanent residency application be signed by the sponsor and her mother. The sponsor told the Tribunal that their relationship with this man ultimately broke down as he owed them money for rent and cut off all ties (including changing his telephone number).

43. He then submitted paperwork to the Department claiming that the sponsor in this case, [named], was sponsoring him as they were in a relationship.

44. However, this was not the case.  The sponsor and her mother submitted statutory declarations to the Department refuting his claim.  The sponsor was not aware that this fraud had been committed until she had been notified by her previous migration agent.

45. It seems unfair that if this fraud has been committed that the perpetrator may have gotten away with it and may now be an Australian permanent resident.

46. It would seem even more unjust if the fraud has been committed resulting in the sponsor being penalised. In this case, the alleged fraud has potentially caused the sponsor significant difficulty in her personal life, whilst also impacting her husband’s current visa application.  Further, it will have a significant, long- term impact on the sponsor’s future with her husband and their child.

    Compelling Circumstances 

47. The Tribunal in reviewing the circumstances of this case finds that there are compelling circumstances for remitting the decision to the Department for further consideration.

48. The couple have maintained their married relationship since 2016 (7 years).  The Tribunal finds that this is a significant period of time.

49. It is the conclusion of the Tribunal that their relationship is genuine and ongoing.  Since the applicant’s arrival in Australia, the couple have cohabitated continuously in the same house both prior to and after their marriage.

50. They now have an infant daughter who is now [age] old and an Australian citizen.  The little girl has a [medical condition 1] requiring her to [use specified equipment] for 23 hours of the day.  Her mother (the Australian citizen sponsor) is the primary carer for her child and is strongly supported by the applicant (the child’s father).  When he comes home from work and on the weekends, the applicant takes care of his daughter, giving respite to her mother.

51. Without the applicant’s assistance, the sponsor would have no other support in relation to the care of the child or her mother.  The sponsor’s mother lives with the couple, and until recently she has been able to assist with her granddaughter’s care.  However, she has developed severe [medical condition 2], is in constant pain and is now unable to lift the baby.

52. The Tribunal heard that without the support of her husband in Australia the sponsor would find it overwhelming caring for her disabled child and ailing mother.

53. As the sole income earner, the applicant supports his family financially, paying all of the living expenses including the mortgage on the family home.

54. Since the child’s birth and due to her mother’s health issues, the sponsor has been unable to work due to her carer responsibilities.

55. The Tribunal finds that there are compelling circumstances for the grant of the visa to the applicant.   A decision to affirm the Department decision would be financially and emotionally detrimental to the sponsor and child (both of whom are Australian citizens).  It would have the potential to impact in a damaging way the sponsor and child’s immediate quality of life.  Further, it may potentially have long- term effects on their quality of life, including their economic and emotional stability.       

56. The Tribunal is satisfied that the couple have a mutual commitment to a shared life to the exclusion of all others; are in a genuine and continuing relationship; and live together and not separately and apart on a permanent basis.

57. On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision.

58. Therefore, the applicant meets cl 820.211(2)(a) and cl 820.221 (1)(a) of the Regulations.

    Is the applicant sponsored?

59. Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include 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).

60. At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose 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.

61. 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.

1. The identity and the age of the sponsor in this case is not in question, and she is over the age of 18. 

2. As identified the sponsor may have been the victim of a fraud.  It is claimed that the signatures of the sponsor and her mother were obtained by deception by another individual (without their knowledge or consent) to enable him to be sponsored.  As a result, the Department formed the view that the sponsor was ineligible to sponsor the applicant in this case as she had already previously sponsored two other applicants. 

3. The Tribunal heard that the sponsor had provided a statutory declaration to the Department.  In this statutory declaration she denied knowledge and consent of one of the sponsorships, claimed that she had not been in a relationship with this individual, and that he was a boarder at her mother’s house.

4. The Tribunal has considered the matter and finds that if this is the situation as described, then the sponsor has provided the undertakings as required by reg 1.20, and that the sponsorship should be approved in the circumstances, particularly as the couple now have an Australian citizen child now [specified age] with special needs.

5. It has been determined by the Tribunal that the sponsor is the spouse of the visa applicant (the applicant) as defined in s 5F, given the consideration to each of the matters in reg 1.15A(3) of the Regulations  

6. On the evidence before the Tribunal the requirements of cl 820.211, cl 820.221(1) and cl 820.221(4) are met.

7. 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

8. 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)(a) of Schedule 2 to the Regulations

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

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

   ·cl 820.221(4) of Scheduled 2 to the Regulations

   Donna Petrovich
   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).