2016597 (Migration)

[2021] AATA 4090

2016597 (Migration) [2021] AATA 4090 (6 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2016597

MEMBER:Helena Claringbold

DATE:6 September 2021

PLACE OF DECISION:  Sydney

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

·cl.309.213(1) of Schedule 2 to the Regulations; and

·cl.309.222(1) of Schedule 2 to the Regulations.

Statement made on 6 September 2021 at 2:12 pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – sponsor’s convictions disclosed – relevant offences – substantial criminal record – length of the relationship – child born of the relationship – best interest of the Australian citizen children – money transfers – awareness of living arrangements – decision under review remitted       

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.20J, 1.20KA, 1.20KB, 1.20KC, 1.20KD; Schedule 2, cls 309.213, 309.222

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 29 May 2019, [name], the applicant, applied for a Partner (Provisional) (Class UF) visa. The application was based on her spousal relationship with [name], also known as [Alias A], the sponsor and review applicant.

2. On 20 September 2020, a delegate of the Minister for Home Affair’s refused to grant the visa. The delegate was not satisfied that the sponsorship requirements had been met. Therefore, the applicant did not meet cl.309.213 and cl.309.222 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). On 1 July 2021, the applicant provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision brought by the visa applicant.

3. On 13 July 2021, the sponsor appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The sponsor was represented in relation to the review. The Tribunal hearing scheduled for 13 July 2021, was adjourned.  A reconvened hearing set down for 27 July 2021, was postponed at the applicant’s request.

4. On 1 September 2021, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The sponsor was represented in relation to the review.

5. On 6 September 2021, the representative advised the Tribunal that on 3 September 2021, while the parties were talking on the telephone rapid gunfire occurred for several minutes outside the home where the visa applicant and children are living. The representative requested an expedited decision. At the time of the request, the Tribunal had finalised its considerations and findings and proceeded to its decision.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal considered, individually and completely, the evidence in the Department of Home Affairs’ (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearings. 

   ISSUE

8. The issue in the present case is whether the applicant meets the sponsorship requirements as required by cl.309.213 and cl.309.222 of Schedule 2 to the Regulations.

   BACKGROUND ON THE EVIDENCE

9. The visa applicant was born in [year] in Tripoli, Lebanon. Her parents, [and specified family members] live in Lebanon. She declared one previous partner relationship with [Mr A] from [December] 2010 to [April] 2017. There is one child from this relationship, who was born in [year]. On 20 September 2020, the visa applicant was refused a Partner (Provisional) subclass 309) visa.

10. The sponsor was born in [year] in Tripoli, Lebanon. His father is deceased. His mother, [and specified family members] live in Australia. The sponsor declared one previous partner relationship to [Ms B]. There are [number] children from this relationship, [genders and years of birth specified]. The sponsor entered Australia when he was [age] and was granted citizenship. He last entered Australia [in] May 2018. The sponsor declared changing his name from [name] to [Alias A] and his date of birth from [DOB 1] to [DOB 2] by deed poll.

11. On 10 December 2016, the sponsor and applicant (the parties) met at a friend’s home.  In August 2017, the parties married in Tripoli, Lebanon. The parties’ daughter was born in [year].

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

    Are the sponsorship requirements met?

13. Clause 309.213 requires that the visa applicant is 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 r.1.03 of the Regulations).

14. At the time of decision, this sponsorship must have been approved and still be in force. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each sponsored applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl.309.222 of Schedule 2 to the Regulations.

15. Approval of sponsorship is subject to limitations contained in r.1.20J of the Regulations, which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship, and in r.1.20KA of the Regulations, which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. There are further limits imposed by r.1.20KBogf the Regulations in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010 and r.1.20KC of the Regulations in relation to sponsors convicted of a relevant offence who have a significant criminal record where the visa application was made on or after 18 November 2016.

16. Regulation 1.20KC of the Regulations provides that the sponsorship of each applicant for a Partner or Prospective Marriage visa must be refused if the sponsor has been convicted of a ‘relevant offence’ and has a ‘significant criminal record’ in relation to it. A ‘relevant offence’ is defined in r.1.20KC(2) as an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving matters such as violence, harassment, breaches of apprehended violence orders, weapons, people smuggling, human trafficking, ancillary offences, and attempts to commit offences involving such matters.

17. Regulation 1.20KD of the Regulations provides that a ‘significant criminal record’ includes being sentenced to death, life imprisonment, imprisonment of 12 or more months, or two or more terms of imprisonment totalling 12 months or more, in relation to a relevant offence or offences. A sentence or conviction for a relevant offence must be disregarded if the conviction has been nullified or the sponsor has been pardoned so that they are taken to have never been convicted of that offence: r.1.20KD(5).

    Has the sponsor been convicted of a ‘relevant offence’ and does he have a ‘significant criminal record’ in relation to the offence?

18. The sponsor provided a National Police Certificate (NPC) issued by the Australian Federal Police [in] April 2020. This recorded disclosable court outcomes for the sponsor from 1988 to November 2018. The more recent offences and court results are listed as follows:

    ·[Court 1] [in] November 2018. Make false\misleading statement for authority\benefit. [Reference]: imprisonment: two months commencing [in] September 2018 concluding [in] November 2018.

    ·[Court 1] [November] 2018. Failure to comply with interim supervision order-T2. [Reference]: imprisonment: two months commencing [in] September 2018 concluding [in] November 2018.

    ·[Court 2], [in] June 2016, Assault a law officer (Not Police Officer)- T2.

    [Reference]: imprisonment: 12 months commencing [in] January 2016 concluding [in] January 2017 non parole period with conditions: 9 months commencing [in] January 2016 concluding [in] October 2016 release subject to supervision.

    ·[Court 3], [in] April 2014, Use etc (of a) offensive weapon to prevent lawful detention etc-T1. [Reference]: imprisonment (aggregate): 3 years 3 months to commence [in] August 2013 conclude [in] November 2016 non parole period with conditions: 2 years 5 months to commence [in] August 2013 release subject to supervision to participate in alcohol and drug counselling undergo psychiatric/psychological counselling random urinalysis indicated sentence [Reference] 1 year (001) 3 years referred to [Court 4] - cdto ass : [Reference numbers] court case reference [number].

19. A psychological assessment report dated 11 March 2021, provided the following information.

    The sponsor has been in and out of custodial institutions since he was [a child] when he started shoplifting. He then progressed to more serious crimes including break and enter, car theft, robbery, assault and bribing police. He has spent several years in prison, primarily for drug related crimes. He has served time in prisons including [named prisons]. His most recent period of incarceration ended in 2016. He usually served sentences of four to five years duration and has not been convicted of any offences since 2012.

20. In a submission dated 16 April 2021, the representative stated the following: the sponsor’s last (relevant) offence was heard at [Court 2] [in] June 2016, which is approximately five years ago. Following his release from prison in the middle of 2016 he went to Lebanon.

21. In a statutory declaration dated April 2021, the sponsor stated the following: he understands that the visa was not granted because he committed relevant offences and has a substantial criminal record.

22. The Tribunal is satisfied that the sponsor has been convicted of relevant offences and that he has a significant criminal record in relation to those offences. 

    Should the sponsorship be approved?

23. The sponsorship may nevertheless be approved if it is reasonable to do so, having regard to matters including the length of time since the sponsor completed the sentence, the best interests of any children of the sponsor or primary applicant, and the length of the relationship between the sponsor and the primary applicant: r.1.20KC(4).

24. Approval of the sponsorship may also be refused if the Minister (or Tribunal on review) has requested a police check from the sponsor under r.1.20KC(5) and the sponsor does not provide the police check within a reasonable time: r.1.20KC(6).

25. In an undated statement the sponsor declared the following. On 7 December 2016, he arrived in Lebanon with the intention of getting married. Three or four days later he met the visa applicant at a family member’s home. He was told that she was divorced with [an age]-year-old son. He spoke with her and obtained her telephone number and they started to get to know each other. She is the best thing that has happened to him in his life. They now have a [age] girl baby girl. He returned to Australia in order to earn money for the visa application. He sends money to the visa applicant from time to time and they communicate through [social media].

26. On 24 July 2020 in a statutory declaration, the sponsor provided the following information: his criminal history affected his sponsorship for the visa application. He has tried his best to change and be a (contributing) member of society. He takes full responsibility for his past behaviour and history. He has left criminal life behind him and it’s been over four years since he last committed any crime. His marriage to the visa applicant restarted his life. He wants to live in harmony and peace with her and the children. He fears for their lives as they are living without him in Lebanon.  He wants to bring them to Australia, so they can live as a family in safety and where the children can grow and be nourished. If the sponsorship is not approved because of his criminal history his family in Australia and his family in Lebanon will suffer. His past criminal history should not affect his children’s future and safety. Because of COVID-19 he has been working part-time in a stable position for about two years. He is able to support his family financially and fulfil his duty to look after them. He believes that he and his family should be given a chance to have a life together. Australia is his home and he does not know any other country as home. He would like his children to be given the opportunity to have the privileges he had.

27. The sponsor provided a translated statement for the applicant dated 14 March 2019. She declared the following. She met the sponsor on the 10 December 2016. After speaking on [a messaging service], they decided that they would go out together. They continued to meet every couple of days to have coffee, go shopping and go to restaurants. She spoke with her parents about the relationship and they approved of her meeting the sponsor. In February 2017 having met her parents the sponsor lived at her sister’s home. The parties began spending more time together. The sponsor treated her son as his own and was affectionate and loving towards them. He gave them clothing, toys and money. The parties were engaged for about eight months before marrying in August 2017. On [date] she gave birth to a baby girl. She hopes that she and her daughter can join the sponsor and live together with the sponsor in Australia.

28. The sponsor provided a translated statement for the applicant dated 21 August 2020. She declared the following. She married the sponsor four years ago. He is now a better person and has not had any problems for nearly four years. He is completely different and cares about his family a lot. Their [age]-year-old Australian citizen daughter is entitled to live in Australia. The parties’ dream of being reunited as a family in Australia in one safe house. The sponsor has been supporting their child and the applicant. Life is very difficult without the sponsor. Every day their daughter asks about her father and wants to be with him. She asks that consideration be given to the difficult circumstances in Lebanon and to granting the visa. The sponsor has not seen his daughter since her birth. Copies of money transfers record the sponsor transferring money to the applicant. Other information relates to the sponsor sending items to the applicant.

29. Various third-party statements provide information about the parties’ relationship being genuine and of them having a child together. Video and photographic evidence depict the parties at their wedding together and with others. Records of chat and text messages have been provided. Other photographic evidence depicts the parties together and with others at different locations.

30. The applicant provided an employment contract with a commencement date [in] June 2021. This recorded a salary of $55,000 per annum. In his more recent employment contract, he consents to having drug and alcohol testing and to provide the relevant samples for testing.

31. In a submission dated 16 April 2021, the representative stated the following. The sponsor is separated from his wife and child who live in Tripoli, Lebanon. Their [age]-year-old Australian citizen child needs the care and assistance of the family unit. She is suffering from separation anxiety as a result of living apart from the sponsor. She is living in a country with severe political and social unrest. This is having a negative impact on her welfare and safety. She needs to live in humane civilised and normal conditions. The child will not come to Australia without her mother and needs the care of the sponsor. The sponsor shows signs of distress and emotional hardship due to the current separation from his wife and daughter.

32. The representative continued and stated the following. It is approximately five years since the sponsor’s last (relevant) offence was heard at [Court 2] [in] June 2016. This is a considerable time and shows that the sponsor is a fit and proper person. He has shown sincere remorse for his past criminal convictions and has made positive steps to improve his character. This is supported by the information provided in his employment records, mental health reports and employment references. The sponsor’s efforts in reforming himself are evident through his desire to have a close-knit familial environment. He is married and has proven to be a devoted husband through his eagerness to support his wife and child in every way. His psychologist confirms that it has been approximately five years since the sponsor’s last criminal offence and that he is a reformed man. He ceased using all illicit substances while in prison. Despite him having paranoid schizophrenia he has not experienced any psychotic episodes since ceasing drug use in 2011. His refuses to engage in self-destructive and dangerous behaviour and wants to move forward. This means that it is less likely that he is a threat or danger to society at large. Following his release from prison in the middle of 2016 he went to Lebanon in order to remove himself from the negative influence of his former circle of criminal and drug associates. This mitigates the severity of his criminal history. He made reasonable steps in order to reform himself and become a responsible citizen. He returned to Australia to earn an income in order to support his family. He is currently employed. He changed his first name of ‘[name]’ to ‘[his alias]’ by deed poll in order to make a clean start from his former life of crime.

33. Under the ‘best interest of the child’ provision in r.1. 20KC, it is clear that the current situation in which the child is placed is not in her best interest. In policy, the best interest of the child must be treated as a primary consideration. This means that it is reasonable to approve the sponsorship despite factors of the sponsor pointing in another direction. The separation of the sponsor from his child is exasperating his current psychological illness. It will cause detriment to the overall well-being of the child. As an Australian citizen, the child is entitled to the rights and protection of Australia. The separation from the sponsor is also deteriorating the emotional state of the visa applicant. The representative stated the following.

    ‘Policy on the best interests of the sponsor’s children is as follows:

    ·The Department’s policy is that the best interests of these children should be treated as a primary consideration. Under this policy, the best interests of a child may satisfy the delegate that it is reasonable to approve a sponsorship despite factors pointing in the other direction. This is especially the case where the child is a child of the relationship because, as a general rule, it is accepted that a child’s best interest is to be with or have access to both parents. However, the facts of each case must be carefully assessed.

    ·Treating the best interest of affected children as a primary consideration is broadly consistent with Australia’s International Treaty obligations under:

    ·Article 3 of the Convention on the Rights of the Child (CRC), which stipulates that the best interests of a child should be a primary consideration; and

    ·Articles 17 of the International Covenant on Civil and Political Rights (ICCPR), which prohibits arbitrary or unlawful interference with ’the family’; and

    ·Article 23 of the ICCPR, which recognises the family as the natural and fundamental group unit of society that is entitled to protection by society and the State.

    In accordance with the information above, evidently the child of the sponsor has Australian citizenship. Therefore, in accordance with Article 23 of the ICCPR, she is entitled to the protection by society and the state of Australia.

    ·As per Article 17 of the ICCPR, it will be unlawful to illegally prohibit or interfere with the family unit of the sponsor and the applicant’s child. Article 17 will be breached if the best interests of the child is not taken into consideration without any limitation by the delegate. l.

    ·As per Article 17 of the ICCPR, the psychological references included in the application emphasise the fact that the best interests of the child will be significantly hindered. The psychological report states that if the father remains separated from his child, this will negatively affect the emotional and psychological development of the child.

1. Other relevant policy is as follows: All aspects of the relationship should be considered, including but not limited to:

   a.whether or not the primary visa applicant and sponsor were in a spouse or de facto partner relationship when the sponsor committed the offence(s) and/or received/served the sentence(s).

   b.whether or not the visa applicant(s) was/were aware of the nature and extent of the sponsor’s criminal history prior to the department disclosing it to them; and

   c.the visa applicant’s reasons for why the sponsorship should be approved.’

2. The visa applicant was aware of the ‘nature and extent of the sponsor’s criminal history’ prior to the Department disclosing it to her.

3. In a statutory declaration dated April 2021, the sponsor stated the following. He was born in Tripoli, Lebanon. He arrived in Australia in 1975 when he was [age]. His father was an Australian citizen and his mother joined him on what he believes was a partner visa. His siblings were born in Australia, except for [one brother], who was born in [Country 1] in [year] and obtained citizenship by descent. His parents, [and specified family members] live in Australia. In addition, his aunts, uncles, nieces, nephews and cousins live in Australia and it was very hard for him to relocate to Lebanon where the visa applicant and his daughter live. He has lived in Australia his entire life and considers Australia his home.

4. He is fundamentally a good person who was abused by his parents as a child. This left him traumatised and saw him when older turn to drugs and caused him to turn to a life of crime for a long time. He felt anger toward his parents and directed that anger to other people. Over the last five years, he has worked to reform himself. He married the visa applicant and they have a child together. These circumstances curbed his anger and impulsive behaviour. Having his family in Australia will help him remain positive and happy and alleviate the anger he feels as a result of his treatment as a child.

5. The parties first met in December 2016 and began a relationship. In August 2017, they married and are in a long-term relationship. He wants to be a good husband and father. He wants to ensure his daughter has a happy and emotionally fulfilled childhood. He is sad that she doesn’t have her father with her.  He calls the visa applicant and his daughter several times a day and his daughter requests that the visa applicant call him. His daughter has a lot of anxiety and becomes upset when she is separated from the visa applicant for any length of time. His daughter is an Australian citizen. She will not come to Australia without the visa applicant. It is in her best interest to be raised by both her parents. She needs the sponsor in her life. This is a critical age for her development and he wants to be with her. His daughter already shows signs of separation anxiety and cries when the visa applicant leaves her.

6. He has done many bad things in the past but having his family in Australia will further help reform his character. If they come to Australia, he will save to rent accommodation for them. All the money he currently earns he sends to his family. They are suffering hardship due to the social and political circumstances in Lebanon. He has made many mistakes and committed crimes and is sorry for this and he takes responsibility for his actions.

7. Since returning from Lebanon he has worked as a manager in a [Business 1] in [Suburb 1]. The [Business 1] is also connected to a [Product 1] company where he works for around 10 hours per week. After this he gained part-time employment for five hours a week with [another] company where he has worked since October 2019. In addition, he receives a disability support pension. His aim for the future is to open a [Business 2] where he would work the night shifts and hire staff to work the day shifts. He has been diagnosed with several medical conditions including some that affected his behaviour in the past. When he was [age] years old, he was diagnosed with schizophrenia and medicated on antipsychotic medication and injections which have stopped recently. Ten years ago, he was diagnosed with back pain and at times medicates with a painkiller. More recently he has been diagnosed with depression and generalised anxiety and is medicated on antidepressants.

8. His last offence for assaulting a police officer was heard was heard [in] June 2016, at [Court 2]. This is around four and a half years ago. [In] November 2018, he was convicted of various offences relating to the purchasing of a car, which he was not supposed to do. It was a regrettable mistake. It is significant that his last substantive offence is close to five years ago.

9. A translated statement dated February 2021, provides the following information from the visa applicant. The visa applicant and her children in Lebanon are not safe. Their lives are not settled due to separation from the sponsor. The children do not have a future in Lebanon.  They are Australian citizens and have the right to live in a country which will provide them with adequate protection, respect, education and hospitalisation. She would like to have a decent and happy life with the sponsor and the children in Australia. The sponsor made mistakes in his life; however, he has backed away from his previous actions. He has given himself a new life with her from the time of their marriage. He is a good person and has the motivation to work. He sends them money for their expenses and other provisions. He is desperate because of their separation.  She is stressed and constantly thinking about the children. She didn’t believe she would have to live separately to the sponsor.

10. A ‘[health service]’ final report printed [in] January 2021 is related to an admission/attendance date [in] August 2018. This recorded the following information: the sponsor’s recent release from custody and order for him to link with [their] services; his history of assaulting a police officer resulting in in-house incarceration; allegations of terrorism which he denies any involvement in or thoughts of this and of him wearing an [electronic monitoring bracelet]; he is diagnosed with paranoid schizophrenia and anti-social personality disorder; he has a history of polysubstance use, transiency, crime, involvement with gangs and poor impulse control and significant forensic history as well as history of self-harm. He requires a full mental health assessment as soon as possible and review by a psychiatrist to ensure his medication regime is maintained and effective to prevent relapse.

11. A psychological assessment report dated 11 March 2021, provided the following information:

    ·The clinical psychologist in preparing her report assumed the information provided to her by the sponsor about his personal history and psychological functioning as factual within the limitations of his own interpretation and perceptions. However, she appreciates that this alone does not assist in establishing the fact and that his account of his history is not an independent determination of the facts. She established that the sponsor was aware of the purpose of the psychological assessment and that the information he provided was not confidential. The report is based on the information the sponsor provided to her regarding his psychological and social functioning. The report assumes, that her clinical assessment of the sponsor is a true and correct reflection of his psychological functioning at the time of the interview. Her opinions are based wholly or substantially on the information provided to her by the sponsor and on her specialised knowledge of 25 years of clinical experience.

    ·The sponsor was born in Tripoli, Lebanon. His first name was originally spelt [name], however he changed it by deed poll to ‘[his alias]’ in order to make a ‘clean start’ from his former life of crime. His actual date of birth is [DOB 1], however, he also changed it by deed poll to [DOB 2], again to make a ‘clean start’. He has a poor relationship with his parents, who are now divorced. Nonetheless, he currently resides with his mother and his father lives close by with his second wife. He is the oldest of [specified siblings] but does not have a close relationship with his siblings. He did not spend a lot of time with his siblings while growing up as he spent most of his youth in boys' homes or in juvenile detention.

    ·He has [specified] children and [grandchildren]. His [age]-year-old daughter lives in Sydney with her children. His [age]-year old son lives in [another city]. Both children are from a short-term marriage when he was in his early 20's. He gets along with his older children but does not see them often. He has [an age]-year old daughter with his current wife. He has not met his youngest daughter in person yet. She lives in Lebanon with her mother and was born shortly after the sponsor returned to Australia in 2018. He has a stepson, aged [age], his wife's son from a previous marriage. He regards his stepson as his own and provides financial support for him. His stepson's biological father is Australian but has nothing to do with him (and is currently in gaol in Australia). His current wife in Lebanon and his stepson didn't have Australian citizenship, as his biological father had had nothing to do with him since his birth.

    ·In 2016, following his release from prison he decided to go to Lebanon in order to remove himself from the negative influence of his former circle of criminal and drug associates. He wanted to start a new life divorced from his former life of drug abuse and crime. He met his current wife shortly after arriving in Tripoli. They married within a year of meeting. His life with his new wife was full of happiness. He helped her brothers start a business which also provided him with a modest income. He eventually decided to return to Australia in order to earn more money to support his new family. He initially returned to [state] and then moved to Sydney. Since returning to Australia he has been, for the most part and currently, working two [jobs], one during the day (9am-3pm) and the other at night (10pm-6am). He works six days a week and does nothing other than sleep and work. He regularly sends his wife money to enable her to support herself and the children as well as gifts for the children and his in-laws: food, clothing and other items, such as batteries for his father-in-law's hearing aid which are very expensive in Lebanon, so he helps out by providing such items to his wife's family.

    ·He has been diagnosed as having paranoid schizophrenia and is not taking any psychotropic medication. He experienced several psychotic episodes while under the influence of illicit substances. He has not experienced a psychotic episode since he ceased all drug use in 2011. He has a history of self-harm, including [details deleted], substance abuse and alcohol abuse. He has attempted [suicide] while in prison. His physical health is good. He has suffered significant injuries inflicted by others. During one of his terms in prison he suffered third degree burns to his legs when an inmate [attacked him]. He was shot during a gang-related incident and has a bullet lodged in his [spine]. He takes [medication] to manage the pain. He is not under the care of either a psychiatrist or psychologist. He has spoken to mental health professionals at various times during his terms in prison.

    ·He started abusing drugs when he was a young teenager and has abused [specified substances] and alcohol. He ceased using all illicit substances while in prison in 2011. He smokes tobacco and very occasionally, consumes wine.

    ·In 2018, when he returned from Lebanon, he was charged with terrorism offences. He was accused of going to Lebanon to fight in terrorism, which he vigorously refuted. He was made to wear an ankle brace, which he wore until he was acquitted of the charges. The initial acquittal was appealed against and he had to wear an ankle brace for a further three months until he was again acquitted. While on bail he had to abide by certain conditions, including keeping the police informed of all his prospective purchases. He bought a car but did not declare it as he had not anticipated purchasing it and didn't think it warranted being declared. He was charged with having breached his bail conditions and was sentenced to three weeks in prison.

    ·He feels miserable and depressed without his wife and daughter. He feels like he is stuck in a ‘nightmare’ and that he has a huge load on his shoulders. He has been trying to get his wife into Australia for two years.  He spends hours each night speaking to his wife and daughter by phone video, to the point where he sometimes falls asleep while talking to them.

    ·The psychologist stated that it is difficult to comment definitively on the effect that the separation from her father will have on the sponsor’s daughter without having met her and without knowledge of her psychosocial environment. Research suggests that daughters who experience separation from their father can experience poorer psychological adjustment, more interpersonal problems and more depression and anxiety than those whose fathers were present during their developmental years. Research findings are however limited by methodology, with confounding factors including the family-wide environment, the mother's socio-economic status and her response to these factors and the influence of religious factors.

12. Third party statements are dated 2021.  These provide the following information. [Mr C] met the sponsor four years ago through his sister. The sponsor has been working for him since August 2018. He is employed as a casual manager at his [Business 1] in [Suburb 1] and works a weekly 10-hour shift managing store operations. The sponsor is a good person who has made mistakes in his past. He is a committed husband and father and desperately wants his family to come to Australia. He has turned his life around over the last five years and tries every day to better himself. It is unfair for him to be separated from his family and his young daughter and for her not to have her father in her life. The sponsor is honest, forthright and hard-working. He continues to work hard on being a good, law-abiding citizen and [Mr C] is sure that if his family can join him, he will be a fuller person and more satisfied with his life and less anxious. [Mr D] has contracted the sponsor since October 2020 as a courier. The sponsor collates and delivers goods for them on a part-time basis, providing services to them for half a day every week. He is good and reliable and does an excellent job. He is straightforward and honest and always does his best and is organised and never misses a delivery. That he is prevented from having his wife and child join him in Australia has caused him hardship. He loves his family very much and wants to live together with them in Australia as a family. He supports the sponsor in his endeavours to bring his family to Australia.

13. The sponsor told the Tribunal following. When he was a child he was abused by his parents because he was mischievous. His father chained him to the bed, leaving enough chain for him to go to the bathroom and return to the bed. Sometimes his sister gave him a fork and he would free himself and go to a neighbour. His father would pick him up and return him to chains and beat him. When he was [age range] years old, he was sent to [Country 1] to his mother’s family. While there he befriended a neighbour, who molested him. He went to the Australian Embassy and within weeks returned to Australia. He began taking illicit drugs which took him out of the reality of his life. In order to maintain the habit, he turned to criminal activity. He started to self-harm including [details deleted] which [required surgery]. During his imprisonment he had [injuries] inflicted on him. He was compensated with a payment of over $[amount]. He allowed his father to keep the money for him.  However, this was not returned to him.  Instead it financed his father’s travel and marriage to a young wife. He was placed in a (rehabilitation) unit and taught how to deal with his circumstances. When he was released from prison he decided to go to Lebanon.  He met the visa applicant and life started making sense. In January or February 2017, the parties became engaged. [In] August 2017, the parties married. The parties lived together in his sister-in-law’s property, from the time of their marriage until he returned to Australia ([in] May 2018). His decision to return to Australia was to enable him to work and support the visa applicant and her son and the parties’ child. On his return to Australia he was suspected of being involved in terrorism during the time he was overseas. An electronic bracelet was placed on his leg. The matter went to court and was dismissed. The dismissal was appealed and the matter dismissed again in court. When he returned from Lebanon ([in] May 2018) he lived with his father and stepmother. He then moved to live with his mother in the three- bedroom home she owns. The visa applicant has always lived with her parents. She continues to live with them and her [specified family members] and the visa applicant’s son and the parties’ daughter.

14. The sponsor continued and stated the following. He has been in regular employment since his return to Australia in 2018. Initially he worked in a [Business 1] seven days a week and also organised and delivered [Product 1]. He finished delivering the [Product 1] between 6:30 AM and 7 AM. He then went to the [Business 1] and worked on till 2 PM or 3 PM before going home to sleep. He did this for approximately two years earning about $1,100-$1,200 weekly. The [Business 1] closed and because of COVID-19 the [Product 1] delivery was not necessary. He found a job with the courier company. His payment depended on the amount of deliveries he made but he earned approximately $1000 weekly. He left because they would not put him on contract. He never paid tax. Three weeks ago, he began working as a courier for another company. He is contracted to them and is paying tax and receiving superannuation. He works five days a week, Monday to Friday and at times works on the weekends as well. In addition to his salary he receives a disability support pension which is adjusted according to the amount of money he earns. The Tribunal asked the sponsor about the money he had been sending to the visa applicant, calculated from money transfers to be approximately in 2019 over $11,000, in 2020 over $20,000 and in 2021 to date over $8,000. He stated that the money he sent to the applicant came from his work without any criminal activity whatsoever.

15. The Tribunal drew to the sponsor’s attention to the information on his NPC. This recorded that the sponsor has a criminal history spanning approximately 20 years. It also discussed with the sponsor the visa applicant and children’s safety should the sponsorship be granted. He told the Tribunal that they have changed his life and they are in his heart and will be safe with him. He stated that because of his experience of abuse as a child, he would never hurt a child.

16. The Tribunal asked the sponsor about the length of time since he completed his last sentence or sentences. The sponsor stated that it was a long time ago. The Tribunal drew the sponsor’s attention to some of the information on his NPC, that at [Court 1] [in] November 2018, he faced charges of false/misleading statement for authority/benefit.  He was sentenced to two months imprisonment commencing [in] September 2018, concluding [in] November 2018. He also faced charges of failure to comply with an interim supervision order.  He was sentenced to two months imprisonment commencing [in] September 2018 concluding [in] November 2018. At [Court 2] [in] June 2016 he faced charges of assaulting a law officer (not police officer).  He was sentenced to 12 months imprisonment commencing [in] January 2016, concluding [in] January 2017. The sponsor stated when he was charged with terrorism involvement there were some 200 rules he needed to abide by. He purchased a car without permission and this resulted in the offences of [November] 2018. The offence heard on [in] June 2016, resulted from an incident when two prison guards attacked him and he retaliated. He has had no criminal activity since 2016.

1. The sponsor told the Tribunal following. The visa applicant knows everything about his criminal history. He loves her and if it were not for her, he wouldn’t be where he is today. He could have gone back to his previous life of drugs, gangs and criminal activities. He was ‘previously an animal and is now a human being’. He has not been with the visa applicant for three years and has not lived with his daughter. They are his purpose in life. He sends money, clothing and food and milk to support them. The parties talk about all aspects of their daughter’s well-being, including her clothing and diet. He ensures that his daughter has a healthy diet of fruit and vegetables. On one occasion, when their daughter was [age], she was playing on the bed and hurt her ankle. The visa applicant took her to the doctor who wanted to reset the ankle. The sponsor refused to have this happen, he instructed that the ankle be bound and it healed in time. The parties and his daughter speak every day and his daughter asks when they can be together. His daughter is an Australian citizen and can come to Australia, but he would not take her away from the visa applicant. He treats his stepson as his own and both children are treated equally. His stepson goes to school when it is available. He has wanted another daughter for 20 years. His other daughter is [age range] years old and his son is [age] years old and they have moved on with their lives. Lebanon is a difficult country to live in. They are living in a country that does understand humanity and live in danger and hatred because of the political environment. Women and children are treated differently in Lebanon. He worries that the visa applicant may be raped and his daughter kidnapped. Should the visa be refused it would kill him and he may as well be dead. He blames his parents on everything, however they taught him how children should not be treated. He would never hurt a woman or a child and has lived with his brother’s children and helped care for them. He is a rehabilitated and reformed person. He is currently on medication for back pain and for schizophrenia. The schizophrenia medication allows him to lead a normal life and he functions like a normal person. He has not taken illicit drugs for seven years or more, smokes casually and does not drink alcohol. He fully understands the issues relating to the review and has fully understood the proceedings of the Tribunal hearing. He asked that he not be judged on his past but on his behaviour since 2016.

2. The visa applicant told the Tribunal the following. The sponsor told her about his criminal history and the things he had done. He had been imprisoned for 17 years. The sponsor was in prison a week or 10 days prior to going to Lebanon. He went to Lebanon to get married because he wanted to start a new life and forget the past. The parties didn’t know each other prior to them meeting in Lebanon. They met five days after the sponsor arrived in Lebanon. In January or February 2017, the parties became engaged and married in August 2017. After they married, they lived in her sister’s home. The sponsor sends money to support her and the children, parcels that contain food for herself and the children and milk for their daughter. She lived with the sponsor for one and a half years (in Lebanon). She will help him forget the past.

3. When the Tribunal began taking the visa applicant’s evidence, she stated that she understood the interpreter clearly. While taking her evidence as detailed above, the sponsor several times questioned the interpreter’s delivery of what the visa applicant had said. The interpreter stated that he was having difficulty hearing some of what the visa applicant said because of her gentle voice. As a result of these circumstances, the Tribunal adjourned the Tribunal hearing.

4. In the reconvened hearing, the visa applicant stated the following: after the parties met, they spent full days together.  After they married, they lived together. The sponsor supports her and the children financially. He is also involved in making decisions about the children. She detailed the provisions the sponsor sends to support her and the children. The children are Australian citizens and have a right to live in Australia. Because of the situation in Lebanon the children are unable to attend school. Five days ago, when walking with the children there was an explosion three minutes from their location. The children need the sponsor in their lives.  Without him their lives will be difficult.  The children are sleeping on the floor.  They do not have electricity or water.  They want to live with the sponsor in Australia in a safe environment. They want to share their lives together and she wants to be with the sponsor to feel secure and have the sponsor help with the children and for them to have a future.

5. The information before the Tribunal is that the sponsor was brutally abused as a child and molested as a young person. In an effort to escape the psychological damage from these experiences he became a user of illicit drugs and turned to crime to sustain that habit. It is apparent that the sponsor has worked to reform himself.  His marriage to the visa applicant and the birth of their daughter appears to have given him further determination to succeed in his reform.

6. The Tribunal considered the evidence individually and completely. It is more than four years since the sponsor completed his last relevant sentence [in] January 2017. His last relevant criminal offence occurred prior to him knowing the visa applicant. He completed his sentence for his last relevant offence prior to marrying the visa applicant. The sponsor and the visa applicant have known each other for more than four and a half years and been married for more than three and a half years.  They have a daughter from their relationship who is an Australian citizen. The applicant has a son who is [age range] years old, who is an Australian citizen. The visa applicant and the children are living in Lebanon, where their daily lives are in jeopardy and their existence is challenged. The Tribunal was told of the applicant queuing two hours in the hope of obtaining bread, living without electricity and water and of the sacks of provisions sent by the sponsor for the visa applicant and the children.

7. While the Tribunal does not condone the sponsor’s criminal behaviour, it is cognisant of his effort to exclude this behaviour from his life. It appears that he has done so successfully for a substantial length of time. It seems that the sponsor has lived his reformed lifestyle for the longest period of time since without criminal charges or sentences. The Tribunal is conscious of two Australian citizen children living in a war-torn environment where their safety is in question. It considered the unenviable scenario of the visa applicant and the children continuing to live in that environment without the sponsor or of him entering the environment to live with them. It thought about the tenuous condition of the sponsor’s health and of the support the visa applicant provides him. Collectively, these circumstances led the Tribunal to consider it reasonable to approve the sponsorship. Therefore r.1.20KC(4) is met.

8. The Tribunal is satisfied that the applicant is sponsored. Therefore, the applicant meets cl.309.213(1) of Schedule 2 to the Regulations. The Tribunal is satisfied that the sponsorship referred to in cl.309.213 has been approved and is still in force. Therefore, the applicant meets cl.309.222(1) of Schedule 2 to the Regulations.

9. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

   DECISION

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

    ·cl.309.213(1) of Schedule 2 to the Regulations; and

    ·cl.309.222(1) of Schedule 2 to the Regulations.

    Helena Claringbold
    Member