2007149 (Migration)

2007149 (Migration) [2021] AATA 5297 (8 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2007149
MEMBER:Kate Millar
DATE:8 September 2021
PLACE OF DECISION: Adelaide
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; and
·cl.820.221 of Schedule 2 to the Regulations; and
·r.2.03A of the Regulations.

Statement made on 08 September 2021 at 12:52pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – Federal Court remittal – sponsorship obligations – whether sponsor had capacity to sign sponsorship forms – mental illness – compelling circumstances affecting the sponsor – applicant had been in the de facto relationship for 9 years – ceased to hold a substantive visa more than 28 days prior to lodging the visa application – compelling reasons for waiving the Schedule 3 criteria – long-term genuine relationship – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss, 5, 5CB, 65, 359AA
Migration Regulations 1994 (Cth), rr 1.03, 1.09A, 1.20, 2.03A; Schedule 2, cls 820.211, 820.221; Schedule 3, Public Interest Criteria (‘PIC’) 3001, 3004,
CASES
Babicci v MIMIA (2005) 141 FCR 285
He v MIBP [2017] FCAFC 206
MZYPZ v MIAC [2012] FCA 478
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

[Mr A] came to Australia from Bangladesh in 2006 as a student and has not left Australia since. He met [Ms B] in May 2012, and the parties state they have been in a de facto relationship since June 2012.
On 28 May 2014 [Mr A] applied for Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visas. His applications were refused by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs because the delegate was not satisfied [Mr A] and [Ms B] were in a de facto relationship as defined by the Migration Act 1958 (Cth) (the Act) and Migration Regulations 1994 (Cth) (the Regulations).
[Mr A] applied for a review of this decision, and on 19 November 2015, this Tribunal (differently constituted) affirmed the decision on the basis that [Ms B] did not have the capacity to provide the financial support to meet the sponsorship obligations for the visa. This finding was in the context of [Ms B] being found by the State Administration Tribunal to be unable to manage her financial affairs, with an Administration Order being made on 15 July 2014.
The Full Court of the Federal Court [quashed] the decision to refuse the visas, and remitted the matter for reconsideration, in summary finding that the sponsorship undertakings require a sponsor to make an undertaking, but do not require an assessment of the ability of the sponsor to meet undertaking. The Court left open the question of whether, having made the required undertakings, the sponsorship should be approved.
This is the reconsideration of this matter.
[Mr A] appeared before the Tribunal on 26 May 2021 and was represented by his registered migration agent, with final submissions received on 8 July 2021. The Tribunal also heard from [Ms B] and her son [Mr C].
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
[Mr A] said he came to Australia in 2006 to study in Melbourne. He said he had bad friends, could not complete his studies and became unlawful, with the Department records showing this was in March 2008. He said after this he was “roaming around” and ended up in Perth in 2010. He was at a low point and tried to kill himself but was prevented by the manager of the backpacker accommodation, but not long after became homeless and was living on the streets.
While on the street, he met [Mr D] who would stop to chat as he was lonely and would bring him meals. He met [Ms B] through [Mr D] in May 2012. [Ms B] would come and have a chat with [Mr D] and [Mr A] on most days, and eventually invited [Mr A] to see her home and to have a shower. He says she invited him to stay in her house in around 2012, and their relationship developed from there.
[Mr A] said he was located by an immigration officer and was taken to immigration detention on [date] September 2013 and detained for 21 days. He says [Ms B] visited him every day. He applied for a protection visa on 27 September 2013 so he could leave immigration detention and return to live with [Ms B]. His protection visa application was refused by a delegate of the Minister on 9 December 2013. [Mr A] applied for a review of the decision to refuse his protection visa application but withdrew his appeal on 14 April 2014.
[Mr A] applied for the visas the subject of this review, and [Ms B] signed the sponsorship forms, on 28 May 2014.
On 15 July 2014 an administration order was made under the Guardianship and Administration Act 1990 (WA) in respect of [Ms B] by the State Administration Tribunal. This order appointed the Public Trustee as her plenary administrator. A guardian was appointed on 4 December 2014 for the limited function of conducting or settling any legal proceedings and included liaising and obtaining information as necessary, including the sponsorship application made to the Department of Immigration and Border Protection.
The guardianship order was revoked on 30 April 2019, however the administration order remained in effect as at the date of the hearing of this matter.
CONSIDERATION OF CLAIMS AND EVIDENCE
[Mr A] applied for the visa on 28 May 2014 and at that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Regulations, and [Mr A] must meet the primary criteria to be granted the visa.
The delegate refused to grant the visa on the basis that [Mr A] did not satisfy cl.820.211. This was because the delegate was not satisfied that [Mr A] met the requirement in cl.820.211(2)(a) that at the time of the visa application, he was the de facto partner of [Ms B], and did not otherwise meet cl.820.211. The delegate found that as a result, he also did not meet the time of decision requirements in cl.820.221.
At the first review of this decision review, the previous Tribunal found [Mr A] did not meet the requirement in cl.820.221 to be sponsored at the time of decision. This was because the Tribunal was not satisfied [Ms B] had the capacity to meet the financial sponsorship requirements at the time of its decision.
The Tribunal has approached the review of this decision by first considering the sponsorship obligations. If these are met, it is then necessary to consider if, at the time of the decision, [Mr A] was the de facto partner of [Ms B] as defined by the Act and Regulations, and whether he meets the Schedule 3 requirements or if the Schedule 3 requirements should be waived.
Was [Mr A] sponsored by [Ms B] at the time of his visa application?
As it applies to [Mr A], cl.820.211(2)(c) requires that at the time of the visa application, he was sponsored by [Ms B].
The term “sponsor” is defined in r.1.03 of the Regulations as having the meaning in r.1.20(1) and “sponsorship” is defined as an undertaking of the kind referred to in r.1.20 of the Regulations to sponsor an applicant.
Regulation 1.20(1) states the sponsor of a person is a person who undertake the obligations in r.1.20(2).
In the case of a person who has made a concurrent application for a Partner (Temporary)(Class UK) visa and Partner (Residence)(Class BS) visa, the sponsor undertakes to assist the applicant to the extent necessary financially and in relation to accommodation during the two years immediately following the grant of a temporary or provisional visa.
As explained by the Full Federal Court, what is required at the time of the application is that the sponsor has made an undertaking. It does not require an assessment of the sponsor’s financial capacity to fulfill the undertaking.
In this case, [Ms B] signed an undertaking in the 40SP form “Sponsorship for a partner to migrate to Australia” on 27 May 2014..The undertaking appears at Question 52 of the form, and as it applies to a sponsor of a partner visa applicant states:
I agree to assist my partner, to the extent necessary:
·financially;
·in relation to accommodation in the first 2 years immediately after their Partner visa is granted (if they were granted the visa in Australia) or their first entry to Australia as the holder of a Partner visa (if they were granted the visa outside Australia)
In making an undertaking, the person must have the legal capacity to do so. There is a presumption in common law that a person has legal capacity, and when it is alleged a person is incompetent, the onus of proof is on those asserting incompetence.[1] In general terms, legal capacity is understanding the general nature and effect of the obligation.[2]
[1] L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 at [26]
[2] Gibbons v Wright [1954] HCA 17
Legal capacity cannot be a counsel of perfection, as the standard required for a person with a mental illness cannot be higher than it is for a member of the general community. A person’s capacity depends on the type of decision being made and, being decision specific, means a person may lack capacity to make decisions in some aspects of their lives, and not lack capacity in others.
This is relevant in this case as [Ms B] suffers from [Medical Condition 1] and there are contemporaneous records that she was unwell when she signed the document, and it is reported she did not want to sign the application form on the same day it was in fact signed.
This view of the level of capacity required for [Ms B] to sponsor [Mr A] is reflected in the report of her treating psychiatrist, [Dr E], in a report dated 27 July 2015 in which [Dr E] stated that she had not assessed [Ms B]’s capacity in terms of the meaning and ramifications of sponsoring her partner. [Dr E] states that capacity is context specific and “it would be extremely difficult to extrapolate much in this area.”
On 15 July 2014, an administration order in relation to [Ms B] was made by the State Administrative Tribunal under the Guardianship and Administration Act 1990 (WA). This followed an application made on 13 June 2014. The order included a declaration that [Ms B] is:
(a) unable, by reason of a mental disability, to make reasonable judgements in respect of all of her estate; and
(b) is in need of an administrator of her estate.
The Public Trustee was appointed plenary administrator of [Ms B]’s estate.
The application for an administrator arose because the clinicians involved in [Ms B]’s care were concerned about the development of her relationship with [Mr A], as she had reportedly told them she did not want to sign forms associated with [Mr A]’s visa application. The clinicians were also concerned about [Ms B] being financially exploited.
At the time [Ms B] signed the sponsorship form, she was receiving care from clinicians from the Hospital in the Home (HITH) program as an alternative to being admitted to hospital.
[Mr A] was aware from the previous decision that [Ms B]’s mental state at the time of the application was in issue and gave oral evidence on this issue. He said the nurse visited on one of the last days he had to lodge the application, and [Ms B] said she was not feeling good to sign the papers. He said the nurse told him not to take [Ms B] to sign the papers, but after the nurse left [Ms B] said she felt fine. [Mr A] says [Ms B] forced him to go and see her lawyer. While he initially gave evidence that the visit to the lawyer was for his protection visa appeal, on it being asked why [Ms B] would be required to attend this appointment if it was for his protection visa, he then said they were planning the partner visa. [Mr A] later acknowledged the appointment with the lawyer was to sign the application form for the partner visa.
It was put to [Mr A] under s.359AA of the Act that the Tribunal had information from the files notes of HITH in a consultation dated 27 May 2017, the same day the partner visa application was lodged. The relevant part of the document was read to [Mr A]. This was:
Home visit by [named persons] of HITH.
Friend [Mr F alias of Mr A] is also present.
[Ms B] presented as warm and pleasant but clearly more distracted today.
Basically reporting that she could not concentrate and was overwhelmed.
Difficult to elicit the specific issue but when I requested to speak with [Ms B] alone, she reported she was distressed because she was to attend a Lawyer this afternoon for partnership visa with [Mr F alias of Mr A] and did not think she wanted to do this nor felt able to make any decisions about it. When asked, [Ms B] requested I convey this to [Ms B] [presumably [Mr F alias of Mr A]] as she did not feel able to do so as he was a good friend and she did not want him to have to leave the country. Given lengthy support and encouraged not to make any decisions if not sure or able to understand the process. Spoke with [Mr F alias of Mr A] as requested and he appeared very supportive of [Ms B]’s wishes not to proceed with the visa process at the moment.
[Mr A] was advised that if the Tribunal relied on the information it would find that at the time [Ms B] signed the sponsorship form on the same date as this note, she did not have the capacity to do so or was acting under duress. He was advised this was relevant to whether he meets cl.820.211(2)(c) and if he does not meet this clause, this would result in the decision under review being affirmed.
[Mr A] responded at the hearing and said HITH misunderstood what [Ms B] was saying. He said she was not feeling well physically to go and sign the forms. After the nurses left, he and [Ms B] had a chat and he said if she was not feeling great they would not go. He said [Ms B] was the one to decide they would go to the lawyer. He says he tried to explain that in discussion with the nurse they had decided not to go. He says [Ms B] told him she did not say that to the nurse, and wanted him to go to the lawyer with her. He said the application for the partner visa was signed that day, but they had decided to apply for this visa earlier when he was in the detention centre and [Ms B] was not sick.
Further information put to [Mr A] under s.359AA of the Act was contained in the transcript of the State Administration Tribunal (SAT) hearing of the application for a guardianship and administration orders. This hearing was held on 15 July 2014.
The information is contained in the oral evidence of [Ms G] to the SAT about the partner visa application. [Ms G] stated that at the time [Ms B] could not tell her what she had signed, and there were further documents that had to be signed. [Ms G] stated there were definitely concerns about her capacity and ability to recall and understand what she is signing. [Ms G] states [Ms B] told her that she didn’t know and didn’t understand what she was signing.
[Mr A] was advised that if the Tribunal relied on this information it would find that at the time [Ms B] signed the sponsorship forms she did not have capacity to do so, and did not understand the nature and effect of what she was doing. If it made this finding, it would be the reason or part of the reason for finding he did not meet cl.820.211(2)(c) and this would result in it affirming the decision under review.
At the hearing, [Mr A] responded that he did not think she knew what she was saying. He said that before [Ms B] signed the document they had been through those things. He said the lawyer explained what she was signing, and no lawyer will accept a signature without letting a client know about the document.
He was asked if he would bring or seek to bring this lawyer before the Tribunal to give evidence about the advice or her assessment of [Ms B]’s capacity to sign the documents, and was given time, ultimately amounting to six weeks after the hearing, to provide a statutory declaration from the lawyer to that effect or to bring the lawyer before the Tribunal to give evidence.
In further submissions after the hearing, [Mr A] did not provide any further evidence from the lawyer consulted when the application forms were signed to support his contention that the lawyer explained these documents and believed that [Ms B] had capacity to sign them. It was instead submitted that little weight should be given to the information from [Ms G and other named individuals] to displace a presumption of capacity as there was no evidence before the Tribunal from a psychiatrist or a psychologist that she lacked capacity.
The Tribunal was referred to the Legal Profession Conduct Rules 2010 about a lawyer’s professional and ethical duty to ensure they were taking lawful, proper and competent instructions.
This does not clarify what happened on this particular date at the particular consultation that resulted in [Ms B] singing the sponsorship (40SP) form, or explain what the lawyer did at the consultation on 27 May 2014 to satisfy her professional obligations regarding [Ms B]’s capacity to understand the nature and effect of what she was signing, or to ensure she was not signing under duress.
At the time [Ms B] signed the sponsorship form, according to [Mr A] she had recently been in hospital. She was also receiving care and support through HITH. The contemporaneous notes at the time from the clinicians was that she did not know what the forms were and did not want to sign them. The forms were signed on the same day as those contemporaneous records.
It was put to [Mr A] that the concerns of the Tribunal were that [Ms B] did not have capacity to sign the forms or was under some form of duress from him to sign the forms.
[Mr A] said that if he wanted to pressure [Ms B], he would have done this before he was in the detention centre as he was living with her long before he went to the detention centre. He said when he was sent to the detention centre, they got advice that they have to apply for the partner visa and it was only then they decided to apply. He said that as [Ms B] was visiting him in detention and crying, the officers at the detention centre told them they could apply for a partner visa. At that time, they did not have enough money to apply, and the Department’s case manager took [Ms B] with her to apply for a protection visa for him so he could go back into the community and raise money for the partner visa.
In her oral evidence, [Ms B] said that at the time her visa application was lodged in May 2014, her mental health was “not very good”. She had been in [Hospital] in March 2014. She was still not well but didn’t want to stay in hospital so went home. She said [Mr F alias of Mr A] was very supportive while she was in hospital and visited her every day. She said he looked after her when she went home and if he hadn’t been there she would have had to go back to hospital.
[Ms B] said when she is unwell she does not cope with things, and her thinking is all out. She thought it wasn’t safe to leave the house in case she got murdered. When she is really stressed, she goes into a psychosis which affects her ability to understand. She can slightly remember [Mr F alias of Mr A] being in immigration detention. She said she can remember him being there but not what they talked about. At that time her health was OK, but her physical health was down as she had not yet been diagnosed with [Medical Condition 2] and was feeling tired and in pain.
On being asked what she had to do to lodge the visa application, [Ms B] said she had to go to [a place] and see a lawyer there. She said she could not remember a lot about it because she still was not herself, but she signed some papers. On being asked what the papers were for or what they did, she said they were the application for a partnership visa. She understood that it was a big obligation because before she went to sign the papers she was very stressed about it because it was such a big thing for her, but she wanted [Mr F alias of Mr A] to stay in Australia and didn’t want to lose him. On being asked what she was promising to do when she signed the papers, she said if he got sick she would have to pay for it.

[Ms B] was asked if she wanted to comment on the observations of the HITH clinicians that she did not want to sign the papers or was under pressure to sign the papers. [Ms B] said the only pressure was that it seemed such a big thing for her and she was scared about it. She said at the time she wanted to sign them but was scared. On being asked if she understood what she was signing she said “I think so”.
In the seven years since the application was signed, neither the Public Trustee, who remains [Ms B]’s administrator, or [Ms B] has sought to revoke the sponsorship undertaking. At the time, [Ms B] says she wanted [Mr A] to remain in Australia, and thought it was a “big thing” to sign the paper which resulted in her stress.
As explained by the Federal Court, in signing the undertaking, [Ms B] was not promising that she had the financial resources to provide the stated support, she was making an undertaking to do so. In general, the Tribunal would presume the person has the capacity to make the undertaking unless there is sufficient evidence to displace that presumption. On the particular facts of this case, where [Ms B] stated she wanted [Mr A] to remain in Australia, her understanding that it was an application for a partner visa for [Mr A], and that it was significant for her to sign the sponsorship forms, and in light that neither [Ms B] nor her administrator have taken any action to revoke the sponsorship, the Tribunal finds that [Ms B] understood the general nature and effect of the undertaking and it was validly made. This is despite the unconvincing oral evidence given by [Mr A] about the circumstances in which this form was signed.
As a result, cl.820.211(2)(c) was met at the time of the application.
There is also a requirement in cl.820.221(4) that the sponsorship in cl.820.221(2)(c) has been approved by the Minister and is still in force at the time of this decision.
While the Full Federal Court left open the question of what as required for the Minister to approve the sponsorship, the only readily apparent barriers to approving the sponsorship are whether it has been withdrawn or if any other limitation on approving the sponsorship in r.1.20KA or r.1.20KB of the Regulations apply. There is no requirement in the Regulations for the sponsor to do more than to undertake the obligations.
In this case, there is nothing before the Tribunal that would indicate the provisions in r.1.20KA or r.1.20KB apply. The sponsorship has not been withdrawn. [Ms B] confirmed at hearing that she continues to support the application. [Ms B] has in fact met [Mr A]’s needs financially and in respect to accommodation, albeit indirectly through providing accommodation for herself and through her administrator since 2014.
As a result, the Tribunal finds [Mr A] meets cl.820.221(4) of the Schedule 2 of the Regulations.
Whether the parties are in a spouse or de facto relationship
Clause 820.211(2)(a) and cl.820.221 require that at the time the visa application was made, and at the time of this decision, [Mr A] is the spouse or de facto partner of [Ms B].
Are the parties in a de facto relationship?
“De facto partner” is defined in s.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 as to whether they are in a de facto relationship, consideration must be given to all 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 r.1.09A(3) of the Regulations, which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

Financial aspects of the relationship
The financial aspects of the relationship include the joint ownership of real estate or other major assets, or joint liabilities, where the parties owe legal obligations in respect of the other, the pooling of financial resources and the basis of sharing of day to day household expenses.
There is no information to show [Mr A] and [Ms B] have any joint ownership of any real estate or major assets, or any joint liabilities. The lease on the property and the utilities are all in [Ms B]’s name. At the time of the visa application, [Ms B] was solely responsible for these expenses, and from the date of the administration order these legal obligations and financial commitments are managed by her administrator.
There is no information before the Tribunal that either [Mr A] or [Ms B] owe legal obligations in respect of the other. In [Ms B]’s case, entry into any legal obligation would require the involvement of her administrator.
The Tribunal must also consider the extent of any pooling of financial resources, especially in relation to major financial commitments. It is evident that [Ms B] has remained primarily responsible for all major financial commitment such as rent and utilities. As the parties have very limited financial resources, with at least two members of the household living on a single disability support pension, they do not have a car or other major financial commitments.
In examining the pooling of financial resources and the basis of sharing household expenses, [Ms B] has been subject to an administration order since shortly after the visa application was lodged. As a result, her administrator manages her expenses. At the time of the application, a confirmation of a joint account with [Bank 1] was provided stating this was opened 10 June 2014. [Mr A] said they could not maintain this account due to lack of funds and it was closed automatically.
[Ms B]’s costs such as her rent and utilities are managed by the Public Trustee, and she receives an allowance for food and for items. [Ms B] said she finds it less stressful having the Public Trustee managing her affairs and wants this to continue.
One of the reasons an administration order was sought by clinicians involved in [Ms B]’s care was that on one occasion [Mr A] withdrew $500 of [Ms B]’s pension and used it for gambling. [Mr A] said at the time they were trying to raise money for the visa application and [Ms B] gave him her card to use the money. He said he was getting frustrated mentally and annoyed and he could not see any way to get the money, so he gambled the money. He said he has never denied that he did this, but he did this for the family to try and get the money. He said the reports made him out as a monster, but it was a normal thing to try and get the money for the visa for his family. He said this was sharing and caring, but he did the wrong thing. [Mr A]’s explanation was less than impressive.
[Mr A] gave evidence that at the time of the application they joined money together to meet financial commitments. He said he had a part time job and received money from [Organisation 1] after he applied for a protection visa, but this stopped after he withdrew his appeal. He said he did [specified] jobs that were cash in hand.
[Mr A] said the [Organisation 1] money was paid to a bank account and provided some bank accounts statements after the hearing, which show the [Organisation 1] payments and occasional cash deposits. This account generally shows cash withdrawals, and do not of themselves show they shared resources. [Mr A] said these funds were for daily needs such as food.
[Mr A] said [Ms B] did not tell Centrelink she was partnered and said this was because he did not want [Ms B] to get in trouble if the visa was not granted.
At the time [Ms B] paid for all the food, rent and utilities. [Mr A] said they did not specifically divide expenses, and basically [Ms B] paid the bills and rent. [Ms B] independently confirmed she was paying the rent and utilities and [Mr A] bought groceries with the [Organisation 1] money. They were both using Cash Converters to obtain funds.
[Mr A] was granted a bridging visa with work rights after being released from immigration detention but did not find regular work. It was submitted this is due to the COVID-19 pandemic, however this is a period several years before the pandemic.
[Mr A] and [Ms B] said they obtained the money for the visa through a variety of loans. [Ms B] said some were repaid through her pension, but she is not sure if others were repaid.
The Tribunal finds that [Ms B] has met and continues to meet the household expenses, and as such there is a pooling of her disability support pension. When [Mr A] received an allowance through the [Organisation 1], the parties state this was pooled to purchase food.
The Tribunal acknowledges the concerns of the clinicians about the potential financial abuse of [Ms B], and that these concerns led in whole or in part to the administration order that was made. However, the Tribunal accepts that when [Mr A] has had funds that these were shared. Other than when he has had these funds, [Ms B] has met the costs of the household and there is limited sharing of any household expenses.
Nature of the household
The nature of the household includes any joint responsibility for the care and support of children, the living arrangements of the persons, and any sharing of housework.
[Mr A] does not have any children. [Ms B] has a son [Mr C], who is now an adult. At the time of the visa application, [Mr C] lived with his father, who died in 2018. After his father died, [Mr C] lived with a friend to be close to his school and then moved to live with [Ms B] and [Mr A] in 2019.
[Mr C] provided a statutory declaration and gave oral evidence to the Tribunal.
[Mr C] said that he met [Mr A] in 2013 when he was [age] years old. At this time he visited his mother every fortnight and would play board games with [Mr A]. He said his realisation about the nature of the relationship was gradual, and it was not until 2017 he realised they were in a relationship. [Mr C] states [Mr A] cooks for the family, and they take it in turns shopping.
[Mr A] has had an ongoing relationship with [Mr C] over many years and was involved in his care by playing games with him when he visited. At the time of the decision, [Mr A] continues to have a relationship with [Mr C] as an adult, and they care for each other as members of the same household.
[Mr A] says he has lived with [Ms B] since 2012. [Ms B] said it was not long after [Mr A] come to live with her that they started a sexual relationship.
The reports from HITH and other clinicians are that [Mr A] was at the home when they visited [Ms B]. The Tribunal has no reason to doubt they have shared a house since 2012.
[Mr C] gave evidence that when he was young and he stayed with [Ms B] fortnightly he would share a room with his mother and [Mr A] would sleep downstairs. He says he now has the upstairs bedroom and [Ms B] and [Mr A] sleep downstairs in the lounge room.
The Tribunal finds at the time of the application and the time of the decision, the living arrangements are that [Mr A] and [Ms B] shared a house and that they currently both sleep downstairs in the loungeroom. They previously shared a bedroom upstairs when [Mr C] was not visiting.
In his statement accompanying the visa application, [Mr A] states he has to care for [Ms B] due to her [medical conditions]. This includes reminding her to have her medication. The parties provided details of sharing of household tasks, with [Mr A] stating he does the cooking and some of the cleaning. [Ms B] and [Mr C] do the dishes. The Tribunal finds the parties share the housework and did so at the time of the application.
Social aspects of the relationship
The social aspects of the relationship include whether the persons represent themselves to other people as being in a de facto relationship with each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship, and any basis on which the persons plan and undertake joint social activities.
With the visa application, [Mr A] provided statutory declarations from [Mr H and Mr I], who both state they believe the relationship to be genuine. [Ms B] confirmed at hearing that she knew [Mr I].
[Ms J], from [a mental health service], provided an undated letter. [Ms J] states [Mr A] has been a client of the service since 2013 and she was been aware of the relationship since she first met [Mr A]. [Ms J] states she has met [Ms B] on many occasions and has witnessed the genuineness of the relationship and the distress experienced by both at the thought of separation.
[Mr A] provide three further recent statutory declarations in support of the relationship from [Mr I and two other named individuals]. These statutory declarations provide detailed information on the interactions the declarants have with [Mr A] and [Ms B] and the relationship.
[Mr A] could identify members of [Ms B]’s family, and had met her mother and sister on [Ms B]’s [birthday] when her mother and sister visited Perth. He has not met other members of her family. [Mr A] does not have contact with his family in Bangladesh. [Ms B]’s son, [Mr C], states they represent themselves as a de facto couple. They provided greeting cards they state are from neighbours in the cul-de-sac where they live addressed to them both.
The parties state they live a simple life and have little interaction with others, with social outings being for coffee locally or to the beach, and they say they try to do what they can with limited financial support.
The Tribunal finds the parties represents themselves to others as being in a de facto relationship and [Mr A] has met members of [Ms B]’s family. They have social outings together within their financial means.

Nature of commitment
The nature of the persons’ commitment to each other includes the duration of the relationship, the length of time the persons have lived together, the degree of companionship and emotional support they provide each other, and whether the parties see the relationship as long term.
The parties state they have been in a relationship and living together since 2012, a period of nine years. This is a lengthy period of time.
[Ms J], in her undated letter provided at the time of application, states [Mr A] supports [Ms B] by accompanying her to the church on public transport, which is something she did not feel she could do by herself.
[Mr A] provided detailed information about [Ms B]’s health and her relationship with her father over time, including the difficult time in their relationship when [Ms B] was asking her father for money. This is consistent with a report from [Ms B]’s general practitioner and her mother’s evidence to the State Administration Tribunal.
Both [Mr A] and [Ms B] gave evidence of the distress it caused to them both when [Mr A] was in immigration detention. They also both described the support [Mr A] provided to [Ms B] while she was in hospital in March 2014. [Mr A] said he helps [Ms B] to fall asleep when she is distressed.
The Tribunal accepts [Mr A] is intimately involved in all aspects of [Ms B]’s life and that they provide each other companionship and emotional support.
[Ms B] stated [Mr A] does not attend church with her and does not want to marry, which she would like to do.
Conclusion – de facto relationship

100. While there are elements of the parties’ financial affairs and the nature of the commitment that are concerning, they have now been in a relationship for nine years. They share household tasks and have shared a home for nearly 10 years. The relationship is acknowledged and supported by [Ms B]’s son, [Mr C], who lives with them.
101. Having considered all of the factors in s.5CB, the Tribunal has concluded that at the time of application and the time of this decision, they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing and that they live together. [Ms B] and [Mr A] are not related by family. [Ms B] is an Australian citizen and is not a prohibited sponsor within the meaning of cl.820.211(2B).
102. On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time the visa application was made and the time of this decision.
103. Therefore, [Mr A] meets cl.820.211(2)(a) of Schedule 2 of the Regulations.
Are the additional criteria for a de facto relationship met?
104. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A of the Regulations. Both members of the couple must be at least 18 years old: r.2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.
105. The applicant must have been in the de facto relationship for at least the 12 month period ending immediately before the date of the application: r.2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.
106. In this case, the parties state they started a de facto relationship in June 2012. The application was lodged on 28 May 2014.
107. 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. The Tribunal is satisfied that the parties were in a de facto relationship for the 12-month period ending immediately before the visa application, and [Mr A] meets r.2.03A(3).
Does the applicant meet Schedule 3 criteria, or should those criteria be waived?
108. 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). Criterion 3003 does not apply to [Mr A].
109. It is not in dispute that [Mr A] did not have a substantive visa at the time of application. As he did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, an issue is whether he satisfies the Schedule 3 criteria or there are compelling reasons for not applying those criteria. These criteria are set out in the attachment to this decision.
Criterion 3001
110. 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 criterion 3001(2), and as it applies to [Mr A], is within 28 days of his last substantive visa. [Mr A]’s substantive visa ceased 2 October 2006. He applied for the partner visa on 28 May 2014, many years after the 28 day period, and does not meet criterion 3001.
111. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.
Criterion 3004
112. Criterion 3004 of Schedule 3 requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant. In addition, the Minister must be satisfied that the applicant would have been able to be granted the visa if the applicant had applied on the day he or she last held a substantive or criminal justice visa; or would have satisfied the criteria when he or she last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and the last visa or entry permit held (if any) was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or further entry permit, while the holder remained in Australia.

113. [Mr A] did not hold a substantive visa as he did not continue his studies and did not apply for another visa. In addition, he had not yet met [Ms B] and would not have been entitled to be granted the visa when he last held a substantive visa. He does not satisfy criterion 3004.
Compelling reasons
114. 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.
115. The expression “compelling reasons” is not defined for these purposes. However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: 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.
116. In this case [Ms B] has a mental illness. There have been concerns about the management of her financial affairs, however her affairs have been managed by the Public Trustee since 2014. The Tribunal is satisfied that [Mr A] provides care for [Ms B], and has continued to do so over a long period of time. While [Ms B] was hospitalised for her mental illness earlier in the relationship, she has said she had not required a hospital admission since, and this supports [Mr A]’s contention that he provides her with care and support. [Ms B] states she wants [Mr A] in her life, and that they provide each other with companionship and emotional support.
117. In these circumstances, the Tribunal is satisfied there are compelling reasons for not applying the Schedule 3 criteria and [Mr A] meets cl.820.211(2)(d)(ii).
CONCLUSION
118. This is an unusual case, where concerns about [Ms B]’s capacity are confirmed by nearly contemporaneous medical records and which led to orders being made by the State Administration Tribunal. The concern of the clinicians for [Ms B]’s wellbeing is to be commended.
119. However, [Ms B] should not be held to a higher standard to sponsor a spouse than any other member of the community merely because she has a mental illness. The Full Federal Court has clarified that the person needs to make an undertaking simpliciter, and this does not involve an assessment of the ability of the person to fulfill the obligation. In the view of the Tribunal, it requires an understanding of the general nature and effect of the undertaking that was made, and the Tribunal has concluded that [Ms B] had this understanding. Neither [Ms B] nor her administrator have sought to revoke the undertaking.
120. It is now approximately seven years since the visa application, and [Mr A] has in fact been provided with accommodation and with financial support in this time. The relationship has continued despite an ongoing administration order and in difficult financial circumstances. [Ms B] gave compelling evidence about the support she says she receives from [Mr A] and the benefit of being in a long-term relationship with him.
121. Having considered the sponsorship at the time of application and the time of this decision, the nature of the relationship at the time of application and time of decision and the Schedule 3 criteria and found in [Mr A]’s favour on each of these elements, the Tribunal is satisfied [Mr A] meets cl.820.211 and cl.820.221 of Schedule 2 of the Regulations.
122. 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
123. 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; and
·cl.820.221 of Schedule 2 to the Regulations; and
·r.2.03A of the Regulations.

Kate Millar
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).

[2021] AATA 5297

8 September 2021

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