2016341 (Migration)

[2022] AATA 2814

2016341 (Migration) [2022] AATA 2814 (23 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Ms MARYANN YOUNG

CASE NUMBER:  2016341

MEMBER:Michael Judd

DATE AND TIME OF

ORAL DECISION AND REASONS:         23 May 2022 at 10:00 am (WA time)

DATE OF WRITTEN RECORD:                31 May 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.

Statement made on 01 June 2022 at 10:23am

CATCHWORDS

MIGRATION – Partner (Resident) (Class BS) visa – Subclass 801 (Partner) – relationship ceased – compassionate circumstances – ongoing and irreversible harm to an Australian citizen – integration into the Australian community – partner’s specialist skills and contribution to the Australian community – referral for Ministerial Intervention – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 801.221

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.

APPLICATION FOR REVIEW - STATEMENT OF DECISION AND REASONS

REFERRAL FOR MINISTERIAL INTERVENTION

ORAL DECISION OF MEMBER JUDD  

1. MEMBER: This is an application for review of a decision that was made by a delegate of the Minister for Home Affairs on 21 October 2020. The decision was to refuse to grant you a Partner (Residence) (Class BS) visa under section 65 of the Migration Act.

   Delegate’s decision

1. You had applied for the visa on 20 March 2017 on the basis of your then relationship with your sponsor, [Mr A]. At that time Class BS contained only one subclass, subclass 801 Partner. The criteria for the grant of the visa are set out in Part 801 of Schedule 2 to the Migration Regulations.

1. There are no family unit issues here at all.  I do not need to go into the decision record in any particular detail.    It seems that you sponsor, your ex-husband [Mr A], advised the department on 8 May 2020 that he wished to withdraw sponsorship as the relationship had then broken down.

1. The departmental officer wrote to you via your migration agent on 7 September 2020 inviting you to comment on that information.  You were provided with opportunities to submit additional information.  There was no response to that request.  A further contact was made by phone on 6 October 2020 and your current agent, Ms Young, advised that the delegate should proceed to refuse the visa and further action by way a request for Ministerial intervention and that is the way that your case has been presented to me.

1. The difficulty that you have got, obviously, is this; Clause 801.221(2) (c) requires at the time of this decision - being my decision - that you are the spouse or de facto partner of your sponsoring partner, [Mr A], who must be an Australian citizen, Australian permanent resident or an eligible New Zealand citizen. So, of course, your application for the partner visa must fail for that particular reason.

   Key documents and information

1. I am just going to spend a little bit of time confirming the documents that I have considered.  There were submissions from your representative from 29 April 2021 and it is very clear to me that as early as that, as I have already said, your particular application for review was targeted at the tribunal exercising its discretion to submit in its own right a package in relation to consideration of Ministerial intervention.

1. There was information covered by a certificate and I did raise this with you during the hearing. There was a certificate issued under section 376 of the Migration Act. It related to certain information before the department. It was protected, if I put it that way, because disclosure of the material would be contrary to the public interest.

1. I recall that at the hearing on 2 May 2022 I did raise this information with you in a general sense and of course, the information was to the effect that you had not been in a partner or de facto relationship or spousal relationship since 2020.  That information was put to you.  I think it is fair to say you had a pretty good idea who the source of the information might have been.  Of course, it is not my position to reveal that; I did not.

1. I found your answers in relation to why you did not disclose the truth of your relationship [that you were separated] yourself to the department somewhat difficult to accept. It is clear that it was your ex‑partner that disclosed the break-down of the relationship. I have considered all of the submissions of Ms Young.

2. The Ministerial intervention submissions of Ms Young were directed towards there being strong, compassionate circumstances that if not recognised, would result in serious ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit; the submissions were also put on the basis of the level and the nature of your integration into the Australian community and the length of time that you had been in Australia. Most of that second ground is not addressed in the current Ministerial direction guidelines but nevertheless I have considered the strength of that submission. 

3. There were further submissions of 19 August 2021.  In those submissions it was put to the Tribunal that, rather than withdraw the application for review, you wished to continue and attend the hearing for the purpose of obtaining a decision as to accessing the Minister’s powers.

1. We spoke at the Tribunal hearing held on 2 May, about three weeks ago, and this is what I gained from talking to you.  You are [an age]-year-old woman, you were born in Stuttgart in Germany, that is towards the southern side of the country.  I understand that is Bavaria.  Your parents are still living.  They are in [Country 1].  Your brother, [named], is [age], he lives in [Country 1] also.  You did not go to university in Germany.  You left Germany in 2012.  You have done some work in [Country 1], but very little work.  You have done your compulsory two years military service.  It seems that you finished that in about [year].

1. You told me that following military service a lot of [Country 1 residents] go overseas after that service.  You entered Australia through Queensland [in] October 2014 on a section 417 working holiday visa.  You had initially worked as [an occupation 1] for a [product 1] company.  You came to Perth about six months after your first arrival.  You did not know anybody in Perth. 

2. We spent a little bit of time discussing your work history here in Western Australia.  It is clear to me that you have been employed - if not all of the time, the vast bulk of the time you have been here in Western Australia.

1. I think it is fair to say that the jobs that you have occupied are positions of responsibility here in Western Australia.  It is clear that in 2020 there were significant personal life challenges for you and your relationship with [Mr A], that resulted in a break-up.  It seems you had met [Mr A] at a [venue] that you were working in back in about 2015.  He was [an occupation 2].  You married [in] July 2016.  I note that you married in Perth, however there was also a ceremony in [Country 1]. You had started living together with [Mr A] in about December of 2015.  You had last lived together with [Mr A] in about July of 2019.

1. I think it is fair to say that with respect to your decision not to disclose the truth of your relationship to the department, you decided to chance your arm to some extent.  I think that is a reasonable inference to arrive at.

1. You told me about your current personal business interests.  The purpose of the business is to [business line] and also some [related] work.  Your business is as a sole trader. 

1. We then spoke about your new relationship, that is with [Mr B].  [Mr B] is an [occupation 3].  He works in the [specified] section, which I understand is quite a specialised area.  You have been together with [Mr B] since about September of 2020.  You have been living together for over a year now. 

2. I spoke about your health and your mental health.  Your health is generally good.  You have no mental health issues.  You had some counselling at the time of separation from [Mr A].  You have no family in Australia.

1. You tell me that when your business eventually builds up clientele, these clientele will be both international and Australian based. You told me that a company called “[Business 1]” which operates up [Town 1] way is looking at hiring you.  You told me that you and [Mr B] are starting a new life and you have already started a life as I understand it, over the last few weeks, up in [Town 1]. 

1. Bearing in mind you could not satisfy the visa requirements, I asked you why I should consider recommending Ministerial intervention.  You told me that you had done the best you could through a pandemic.  You told me about your involvements with the [Community 1] here in Australia and that being forced to leave Australia would ‘explode your dream’, in your words.  You have been here in Australia for seven years or so. 

2. You told me that you do not now know what life in [Country 1] would look like if you returned; I found difficulty in accepting that. Whilst seven years is a reasonable period of time, I doubt that you would have difficulty settling back into [Country 1]. [Your family live there].

1. You tell me that you speak to your family every day. I talked about the impact this would have on you if you had to leave Australia.  You tell me that you have a lot of emotions.  This is your life now in Australia.  You want to set up your life with [Mr B].  You want to contribute to the Australian community and you have not breached your visa requirements or conditions here in Australia. Whilst I accept that you have not technically breached your conditions, I must say again that you should have notified the department of your change in circumstances with [Mr A]; you made a conscious decision not to do so.

1. I spoke to [Mr B].  He is [an age]-year-old young man.  He has worked in [a specified field].  He qualified in that area 14 years ago.  He told me about his overseas experience, working in [two named countries].  He gained work with [Business 2] on 18 April 2022.  That is an indefinite arrangement if he wishes it to be.  He has never been married.  He tells me that he wants to have children.  I did ask, and I was not being personal about it, whether you were perhaps ‘expecting’ and I was told that that is not the case.  He describes the relationship between the two of you as being true love.

1. He had worked with [Business 3], with [Business 2] and also [Business 4] prior to the current work.  He told me about a business that he had, or a company, [Business 5] and that he had sold half of that particular company.  He told me that it would be devastating for him if he had to work overseas or leave Australia to pursue the relationship with you.  He said it would be tragic.  He told me about the [Bank 1] mortgage, there is an amount of about $400,000 outstanding on a mortgage and that is in his name over a property.

1. He told me that he does not have a visa in [Country 1] and certainly does not have a work visa for [Country 1].  Generally, his mental health and physical health is good, subject to (indistinct 21.36.42).

1. My impression, having spoken to both of you, is that you appear to be in a genuine committed relationship.  I spoke to you again after I spoke to [Mr B] and I had noted that you became quite emotional and quite upset.

2. Your representative, Ms Young, then gave some brief submissions about positive contributions to the Australian community, the breakdown of your marriage with [Mr A], that you are a bright an intelligent young lady; I accept that. So, that was the hearing itself.

   Tribunal seeks further documents and information as to considering referral for Ministerial Intervention

1. On 2 May 2022 I issued a letter seeking further information.  That letter confirmed that I would deliver a decision to refuse you the partner visa.  I think you, yourself would have accepted that at the time.  The letter indicated that the President of the tribunal has issued directions as to how the tribunal should deal with applications such as yours.  Now, I sought further documents and I think it is fair to say that at that point in time in relation to yourself, [applicant name], I was not persuaded to exercise my discretion to refer your matter for Ministerial intervention.  But that was in relation to your personal circumstances.

2. That is why I requested such documents as bank statements for [Mr B] and also copies of awards, qualifications, letters of recognition, evidence of skills as required by Australian authorities and employer references and also the potential impact upon [Mr B’s] family in the event that he was to depart Australia to follow you for a significant period of time. You did provide such documents and that includes the [Bank 1] documents which I have considered, the mortgage account, your records with [Bank 2] also, which I have also considered. 

1. There is a letter, quite an old letter, of 18 March 2003 and that related to [Mr B’s] selection in a sporting team. I think that was [sport 1] if my memory serves me correctly.  In fact, [Mr B] had obtained selection for [a sporting event].   That was back in 2005.  There is also a letter from that period of time congratulating [Mr B] in relation to the [sporting event] Team from [an official].

1. There are other documents in relation to the [sport 1] side of things for [Mr B]. I have seen all those documents and I have given them some weight.  There is a document, [Qualification 1].  That is dated to 26 November 2010. I am satisfied that [Mr B] did obtain that qualification. There is also a Statement of Attainment in relation to [Mr B]. That related to training.  Some things include [units completed] and so forth.  I am prepared to accept that those qualifications relate to specialised [occupation 3] work.

1. There is another document which appears to be a CV in relation to [Mr B].  It sets out his qualifications also or in relation to the type of work that he does.  Another document in relation to his [registration] for [other specified] work also.  The classes covered include [related fields] work also.  There are qualifications for [Mr B] in relation to [related work] authorisation, [registration] in relation to [Business 6].  A document in relation to you, [applicant name], from [a named person] of [Community Organisation 1] dated 26 April 2022 as to your honesty and your involvement in that particular community.  In relation to your involvement with [Agency 1] volunteers that you have been actively involved in that volunteer program.  I think it is fair to say from what you told me, you have a fond regard for [this work].

1. A document from [Manager A], he is a [manager] at [Business 7], saying that [the applicant] is employed with one of the direct contractors, as a full-time trainee [occupation 4].  The position is based on two weeks on, one week off fly-in roster out of Perth.  The trainee program runs for six months.  I take a note of that.

1. There is a letter from [Mr B] and I am going to read this out. That is dated 28 April 2022.  He points out that you have been in a committed relationship since September 2020, and you have formed a bond that is inseparable and extraordinary.  He met you in August 2020, that he travelled to [Country 1] and [Country 2] with you.  In April 2021 he decided it would be easier for the two of you to live together and as you have been dependent on each other for all areas from financials to small life administration tasks.  That you now have an established life in Australia and that you call Australia home.  That you have established many friend relationships and bonds, that you have volunteered, that you have worked in remote locations in [Industry 1] and you have contributed to the Australian community, that you have just recently signed up to moving your lives from Perth to [Town 1] where you plan to work in [Industry 1] for the next few years with a focus of working hard, saving money so you can achieve your dreams of one day owning a small hobby farm where you can start a family.

1. There is a letter from [Manager B] setting out how he knows the two of you, that he is employed by [Business 8] in the role of Operations Manager. He sets out his involvements with [Mr B], that [Mr B] brings a very high level of knowledge and skill in [his occupation] and that he is relied upon to take a leading role on major projects; he does so with competency and success.  He has worked on projects nationally and internationally.  He is willing to help when technical assistance and support is requested, notwithstanding he is not currently engaged by [Business 8].  It is clear that [Manager B] has a very high regard for [Mr B’s] leadership and his ability to mentor apprentices and less experienced tradespeople.

1. There is a letter from a [Manager C] of [Business 9] which is a character employment reference for [Mr B].  He says that he has known [Mr B] for 15 years, meeting him as an acquaintance, that [Mr B] reported directly to him as a [specified role], operating his own [business], being [Business 6], that he offered [Mr B] a full-time permanent position at [Business 9] in [Town 2] as an [occupation 5].  He sets out the type of equipment upon which [Mr B] was operating and even though I have a very limited understanding of this particular industry, I accept that it is a specialist role.

1. In fact, [Manager C] states that [Mr B’s] knowledge and experience with [specified roles], along with his motivation to always deliver successful outcomes resulted in him being a core part of the [specified] team at [Business 9].  He is one of the most dedicated, hardworking and innovative resources he has had the pleasure of working with.

1. There is a letter from [Mother A], who is [Mr B’s] mother.  I have given that consideration.  It is fair to say that she holds [Mr B] in very high regard.

1. There is also a letter from [Sister A].  She is [Mr B’s] sister; it is fair to say that she also holds you in very high regard and also as does his mother, says that you have a very positive impact on [Mr B’s] life.

1. There is a letter from [Specialist A] from [Hospital 1] dated 19 May 2022 who discusses [Mr B’s] [condition 1], which is a long-term condition.  It points out that [Mr B] may not necessarily gain the same quality of health care in relation to that condition overseas.

1. There is further a letter from [Person A] and a letter from [Person B] also. I think these two letters are mostly in relation to the strength of your relationship together.

1. Now, preparing for the hearing I did my own research in relation to the particular industry or the particular professional qualifications of, in particular, [Mr B].  I did that so I could better understand the demand for particular work that is performed by [Mr B].  It seems that the employment level for [his specialist positions] had doubled between 2001 and 2021.  Projections indicate that employment levels by 2025 will return to figures seen back in 2019.  What the records indicate is that there will be increasing demand in Australia for people with those type of qualifications and skill.  There are reasons identified as to the shortage.  There is an ageing workforce, current staff who are retiring, there are significant costs to achieve the required qualifications.  There is competition from other organisations and the geographic locations of the work. In relation to [occupation 3s] generally, I am prepared to accept that here is a demand and a shortage at the moment, in particular for specialised [related] work.  In fact, it appears that the employment of [occupation 3s] is projected to grow significantly up to 2030.

1. So, all in all, based on [Mr B’s] qualifications I am prepared to accept that he will be in demand for work here in Australia.

   Consideration of Ministerial Intervention Guidelines

1. Now, the Home Affairs Department has set out some guidelines relating to Ministerial intervention and whilst these are not entirely binding upon the tribunal, they do give an indication of what the department would accept and would not accept in relation to Ministerial intervention applications.  What is important to consider is that the department takes the position that it would be unlikely to accept Ministerial intervention requests for persons who may be eligible to apply for partner visas.  Be that as it may, I have decided to consider your particular circumstances.

1. The department looks at whether there are unique or exceptional circumstances, and these are the sort of examples they come up with; strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm with continuing hardship to an Australian citizen.  In my assessment, I accept [Mr B’s] evidence that - and for his family also - that the requirement or the need to depart Australia for a period of time – perhaps a few years - to await an offshore application would result in significant stresses upon [Mr B] and also upon you, [applicant name], but particularly upon [Mr B’s] family also.  It would result in continuing hardship.  Be that as it may, I do not assess, when considered overall, that there are strong compassionate circumstances that if not recognised would result in serious ongoing and irreversible harm.  I accept it would cause a great deal of inconvenience and stress also.

1. The next aspect is compassionate circumstances regarding your age and of course it must be your age, sir, and/or your health or your psychological state that if not recognised would result in serious ongoing and irreversible harm and continuing hardship.  There is nothing in particular about your age, at [age], or your health, or your psychological state at the moment.  Of course, I have got to make my decision as of today.  I do not find that your circumstances come within that requirement.

1. Another aspect is whether there are circumstances not anticipated by relevant legislation or clearly unintended consequences of legislation or the application of relevant legislation leads to unfair or unreasonable results in your particular case.  And again, I am looking at your circumstances, [applicant name].  There is nothing that is not anticipated by the legislation or unintended consequences of that legislation that would lead to unfair or unreasonable results in your particular case.

1. Another aspect is you cannot be returned to your country of citizenship or usual residence due to circumstances outside your control.  But of course, the last two or so years with COVID-19 have created significant obstacles and challenges in relation to departure from Australia and entry into Australia, but the skies have opened up in the last six months or so.  I do not assess your circumstances as coming within that particular example.

1. The other example given is economic, scientific, cultural or other benefit that would result from you being permitted to remain in Australia.  I accept that you do have experience in various occupations or businesses and you have served those businesses at a level of management but I do not assess that being of an exceptional level.

1. I am persuaded, however, that [Mr B] has a particular degree of skills as an Australian citizen, as a specialist and that those skills are in demand and that they have benefits for the Australian community in the particular environment at the moment.  I am persuaded to refer your matter to the department for consideration of those skills.  That relates to [Mr B].  I think it more likely than not if you have to depart Australia to apply for a visa offshore, that could take several years, perhaps two years, perhaps more, and I think it is more likely than not that [Mr B] would be placed in a very difficult position of either having to leave Australia for several years or the relationship would need to be a long-term relationship for that period of time.  My concern is that if you had time apart for such a period of time the relationship would be challenged to a significant degree.

1. In my view, whilst the circumstances are not specifically covered by the guidelines, I am of the view that it is appropriate for the tribunal to refer your circumstances to the department for consideration of Ministerial intervention, but that is on the basis of [Mr B’s] circumstances and what he has to contribute to the Australian community.

1. In those circumstances the tribunal affirms the decision not to grant you a Partner (Residence) (Class BS) visa.  That said, the tribunal will exercise its discretion to refer the circumstances to the Minister for consideration of Ministerial intervention in your case.

END OF ORAL DECISION  

Michael Judd
Member