2101188 (Migration)

[2024] AATA 3941

2101188 (Migration) [2024] AATA 3941 (1 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2101188

MEMBER:Anne Grant

DATE:1 October 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

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

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

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

Statement made on 01 October 2024 at 3:20pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – approval of sponsorship and genuine and continuing relationship – validly married – sponsor’s significant criminal record and no contact with family – passage of time and no further offending – supporting statements from friends – consistent and credible evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.09A(3), 1.15A, 1.20KC, 1.20KD, Schedule 2, cl 820.211(2)(c), 820.221(1)(a), (4)

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 9 January 2017 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.221(4) because the sponsorship by the visa applicant’s husband had not been approved and was not in force.  The delegate did not make findings about the genuineness of the relationship.

4. The visa applicant appeared before the Tribunal on 26 September 2024 by video using the Microsoft Teams Application to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, who was with the visa applicant.   

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Is the applicant sponsored?

6. Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include 820.211(2)(c) which requires that the applicant was, at the time of application, sponsored by their spouse or de facto partner, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in reg 1.03 of the Regulations).

7. At the time of application, the sponsor, the visa applicant’s partner, [the sponsor], born in [Year], had completed and submitted an approved form 40SP.  The sponsor was over the age of eighteen and is an Australian citizen.  The applicant satisfied the time of application sponsorship requirements in cl 820.211(2)(c). 

8. The parties had provided a civil partnership certificate showing that they registered their relationship under the Civil Partnerships Act 2011 (QLD) on [Date].

   Was the visa applicant the de facto partner of the sponsor at the time of lodging the application and is she his spouse at the time of making this decision?

9. In order to be satisfied that the visa applicant  is the de facto partner or spouse of the sponsor (as appropriate at the time of application and decision), the legislation requires a decision maker to have regard to the various aspects of the relationship as described in regulations 1.09A(3) and 1.15A. 

10. I have carefully considered the information and evidence submitted by the parties at the time of application, over the process of consideration by the department and during the conduct of the review.  I have also had the opportunity to take evidence from each of them.  I found the parties to be frank and credible in the evidence they gave.

11. On the basis of my consideration of the information and evidence before, me, I am satisfied that:

    ·The visa applicant and sponsor met via an online dating application on 23 June 2016.  They commenced living together in the ground floor of the sponsor’s home in [Suburb 1], from 20 November 2016.  Since then, they have continued to live together.  They registered the civil partnership on 30 December 2016. The parties married on 18 April 2021 at their home in [Suburb 2].  I accept the evidence they have provided photographs of them on their wedding day at their home with friends celebrating the marriage, and their marriage certificate.  Their marriage is a valid marriage for the purposes of the Act.

    ·At the time of application, (9 January 2017) the visa applicant  had only recently started paid employment but had obtained a Tax File Number giving the [Suburb 1] address to both her employer and the ATO.  She was still on leave from her paid employment in Philippines.   The sponsor was in receipt of an aged pension, having retired from [work sector], and also receives income from private superannuation and rental income from parts of the home in [Suburb 1], said to be a three-storey dwelling with three separate living areas.   

    ·At the time of application, the visa applicant’s child was 18 years of age and living with her grandparents in the Philippines. She is not an applicant on this visa application, however evidence provided by the parties has demonstrated that the visa applicant and sponsor have provided and continue to provide her and the visa applicant’s family with financial support.    

    ·The parties jointly purchased a property at [Address, Suburb 2] on 13 November 2020 for $543,000.  The parties have a joint mortgage of $150,000 and an offset account with [Bank] and statements reflect deposits of the visa applicant’s wages into the offset account.  They paid extra stamp duty due to the visa applicant’s ‘non-resident’ status but did so willingly because they wanted the home in joint names. The visa applicant has nominated the sponsor as a 50% beneficiary of her superannuation along with her daughter.   The parties jointly borrowed a car loan with [Credit provider] for a [vehicle] which commenced on 30 November 2023 and has monthly repayments of $220 per month. 

    ·At the time of application, the parties stated that they intended to share their physical and financial assets.  Over the course of their relationship, they have demonstrated the genuineness of that intention.  They meet their mortgage, insurance and daily costs from their pooled respective incomes in an unremarkable manner.

    ·At the time of application, the parties lived alone in the ground floor of the [Suburb 1] home, consisting of a main bedroom, open living area, lounge, kitchen, dining and study with a separate toilet and bathroom.  They share all normal daily tasks as ‘husband and wife’.  Since the visa applicant now works, the sponsor undertakes household tasks, including driving her to and from work as needed.  The visa applicant cooks dinner and the sponsor does the dishes.  They have no children in their care and so no shared child care is necessary.  The visa applicant has met the sponsor’s children from his second marriage and also his second wife. 

    ·The parties shared their bed at the visa applicant’s Philippines home where she lived with her parents, siblings and nephews when the sponsor travelled there.  Their relationship was welcomed and supported by the visa applicant’s family.  In Australia, the visa applicant is recognised and considered to be the sponsor’s partner by the sponsor’s friends and their faith community.  They have mutual friends who have provided supporting statements testifying to the genuine and continuing relationship.  The sponsor gave evidence and I accept that he has no ongoing relationship with his children or grandchildren because of involvement of the Department of Child Protection who threatened to remove his grandson from his daughter’s care if she kept having contact with him.  This was shortly after the visa applicant arrived in Australia, and after she had already met the sponsor’s oldest daughter.  In the years prior to the visa applicant’s arrival, the sponsor’s children had been removed from him and placed in foster care.  This was a direct consequence of his past criminal history, which is discussed further below.  As he noted at hearing, his offences from [Year] and [Year] continue to have ramifications in every aspect of his life.

    ·The parties present themselves as a couple to all family and friends and to any acquaintances with whom they come into contact. I note that in this particular case, family connections of the sponsor are complex and difficult but nonetheless, the visa applicant is considered to be his partner and now wife by the sponsor’s family.

    ·The parties have committed to each other to the exclusion of all others.  They registered their civil partnership and claimed that they intend to love, live, and work together to the betterment of each other and their families. They have married.   

    ·The parties have established that their relationship has been ongoing since 2016 and has progressed and continues as a loving and committed union despite quite significant and confronting obstacles they have faced and continue to face together.

12. Because of my findings above in relation to the extensive evidence and information before me, I am satisfied that the visa applicant and sponsor were in a de facto relationship at the time of application and are in a married relationship at the time of making this decision.  I am satisfied that the marriage is valid for the purposes of the Act and that they have a mutual commitment to a shared life as a couple to the exclusion of all others; that the relationship between them is genuine and continuing, and that they live together. 

    I conclude that the visa applicant and sponsor satisfied cl 820.211(2)(a) at the time of application, and satisfy cl 820.221(1)(a)  at the time of making this decision.     

    Is the sponsorship still in force and should it be approved?

13. At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl 820.221.

14. The sponsor has provided full details of his past convictions and has consented to those particulars being disclosed to the visa applicant.

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

16. The sponsor has previously successfully sponsored only one partner, his second wife, ([Ms A]) in approximately [Year].   He is not prevented from sponsoring the visa applicant by the operation of regulation 1.20J.

17. The sponsor has provided detail surrounding his conviction on [Date] for three counts of Indecent Treatment of a Child under the age of 16 (Lineal Descendent/Guardian/Carer).  The charges related to conduct perpetrated on his daughter (then aged [Age]) on two occasions over a twelve month period from [Year] to [Year]. Also disclosed on the National Police Certificate are offences of Unauthorised dealing with shop goods (convicted in Brisbane on [Date] and fined $130 plus restitution) and Theft (convicted in [Location] on [Date] and fined $60.)

18. According to the sentencing remarks from [the judge] in relation to the 2004 convictions, the offences were considered to be at the ‘lower end of the scale’ because the conduct did not involve any force or penetration, was ceased by the sponsor voluntarily after occurring twice; and did not reoccur despite the child being in his care for several years afterwards.  Also, the Judge accepted psychological evidence that the sponsor had shown remorse and that he was unlikely to reoffend.  The sponsor was sentenced to 15 months imprisonment wholly suspended for three years. 

19. The nature of the offences and the suspended jail sentence result in the sponsor having a ‘significant criminal record’ as described in regulation 1.20KD.  In those circumstances, subregulation 1.20KC applies and the Minister (or the Tribunal) must refuse to approve the sponsorship of each applicant for the visa – but may decide to approve the sponsorship if it is considered reasonable to do so, having regard to:

    ·The length of time since the sponsor completed the sentence for the relevant offences;

    ·The best interest of any children of the sponsor or any child of the applicant; and

    ·The length of the relationship between the sponsor and the visa applicant.

20. The abovenamed matters are described as being ‘without limitation.’

21. The sponsor completed the sentence and did not reoffend within an operational period of three years. He therefore completed the sentence in May 2007.  As a consequence of the offences, he was a registered sex offender for ten years and had reporting obligations regarding his residence and vehicles, for example.  There is no suggestion in this case that the visa applicant breached his reporting obligations and he has provided the Queensland Police Service Finalisation Notice dated [Date]. It is now thirty years since the offending took place, and twenty years since his conviction with no further criminal history in the supervening period.

22. The visa applicant has one daughter (now aged [Age]) who is living in the Philippines and the information before me suggests that there are no children in the care of the sponsor.   His own children are adults.   At hearing, the parties confirmed that this is the case.  The visa applicant was asked if she hoped that her daughter could join her in Australia at some point and she replied that she is hopeful that she can do so.  I asked the visa applicant if, in light of the sponsor’s history, she had any concerns for her daughter related to the sponsor and she replied that she did not, and that her daughter knows about the sponsor’s criminal history already.   

23. The visa applicant has confirmed that the sponsor informed her about the convictions and the nature of them when she arrived in Australia and she has closely watched him in social situations and also observed his conduct in their private lives.  She states that he has not displayed any signs that cause her concern, and she is very happy to be his partner and looks forward to their future together.

24. The parties have been in a committed and intimate relationship since 2016, more than eight years.  They have demonstrated a joint desire to plan and live their life together and I consider that the length of the relationship should be given some weight.  I also consider that the judge’s sentencing remarks and the sponsor’s honesty and frankness in disclosing his past to his new partner strongly suggests that he has a very low risk of reoffending. 

25. I consider that the sponsorship should be approved.  No other provision prevents approval. 

26. On the evidence before me, I find that the requirements of cl 820.211(2)(c) and cl 820.221(4) are met.

27. The visa applicant held a substantive visa (a visitor visa) at the time of application, so cl 820.221(2)(d) has no application in this case.

28. 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

29. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

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

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

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

    Anne Grant
    Member