2107808 (Migration)

[2024] AATA 4136

2107808 (Migration) [2024] AATA 4136 (9 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Judy Hamawi

CASE NUMBER:  2107808

MEMBER:Brygyda Maiden

DATE:9 October 2024

PLACE OF DECISION:  Melbourne

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 309.222 of Schedule 2 to the Regulations.

Statement made on 09 October 2024 at 2:02pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner) – sponsorship requirements – conviction on relevant offence and suspended sentence – sponsorship may be approved if reasonable to do so – remorse and no reoffending – valid marriage and length of relationship, living in home country – no consideration of genuine and continuing relationship – sponsor’s mental health and treatment – character references and statement from visa applicant – sponsor’s criminal history disclosed to visa applicant – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.20KC(2), (3), (4), 1.20KD(1), Schedule 2, cls 309.211, 309.213(1)(a), 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. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 May 2021 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).

2. The visa applicant applied for the visa on 29 August 2019 (the “visa applicant”) on the basis of her relationship with her sponsor, the review applicant (the “sponsor”). At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The primary criteria must be satisfied by at least one applicant.

3. The delegate refused to grant the visa on the basis that at the time of application, the sponsorship referred to in cl 309.211 of Schedule 2 to the Regulations had not been approved by the Minister, and therefore, the delegate found that cl 309.222 was not met. The decision record does not make clear why the sponsorship was not approved, but based on other documents on the Department file it appears it was due to the sponsor’s criminal history (see reg 1.20 KC).

4. The sponsor applied to the Tribunal for review on 16 June 2021 and in doing so amongst other things attached a copy of the notification and decision from the Department.

5. The sponsor appeared before the Tribunal on 3 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

6. The sponsor was represented in relation to the review.  The Tribunal also took evidence from the visa applicant. The Tribunal was assisted by an interpreter in the Arabic (Lebanese) and English languages.

7. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether at the time of this decision, the sponsorship of the visa applicant under cl 309.213 has been approved by the Minister and is still in force. That is, whether cl 309.222 of Schedule 2 to the Regulations is met.

   Is the visa applicant sponsored?

9. Clause 309.213 requires that the visa applicant is sponsored by the sponsor, where that person has turned 18; or if 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).

10. According to the Department file, the visa applicant is sponsored[1] by her claimed spouse[2].  At the time of application, the sponsor was [Age] years old[3] and the visa applicant was [Age] old.  Therefore, the visa applicant meets cl 309.213(1)(a).

    [1] See: completed copy of form 40SP: Sponsorship for a partner to migrate to Australia dated 10 December 2019 on the Department file.

    [2] See: Translated Lebanese Republic Minister of Interior General Department of Civil Status, marriage certificate showing that the parties were married on 11 April 2018.

    [3] See: copy of sponsor’s Queensland birth certificate on the Department file.

11. 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. 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 partner 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 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.

12. Regulation 1.20KC 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 reg 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. Regulation 1.20KD provides that a ‘significant criminal record’ includes being sentenced to death, life imprisonment, imprisonment of 12 or more months, or 2 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: reg 1.20KD(5).

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

13. The sponsor told the Tribunal that he had committed assault and was convicted.  It was in 2014, but he did not get charged until 2019.  He received a suspended sentence which he thought was for two years which finished in 2021.  He had also been convicted of the dangerous operation of a motor vehicle and went to jail for two or three months and was convicted of other “bits” when we was younger in 2012 but did not go to jail for those things. 

14. The sponsor submitted to the Department a National Police Certificate dated 10 June 2020 which shows 11 disclosable court results.  The Tribunal is satisfied that the following which certified on the National Police Certificate is a relevant offence[4] in that it is a matter involving violence:

    [4] Reg 1.20KC(2) of the Migration Regulations 1994 (Cth) defines “relevant offences” as including: “(a) violence against a person, including (without limitation) murder, assault, sexual assault and threat of violence;”.

Court	Court Date	Offence	Court Result
[District Court]	[Oct] 2019	Unlawful Assault Occasioning Bodily Harm Whilst Armed	Imprisonment 12 months wholly suspended for 18 months

1. The Tribunal finds that the relevant offence constitutes a significant criminal record[5] due to the imprisonment for 12 months (wholly suspended for 18 months).  For these reasons, the Tribunal must refuse to approve the sponsorship[6].

   [5] Reg 1.20KD(1) of the Migration Regulations 1994 (Cth) defines “significant criminal record” as including: “(c) the sponsor has been sentenced to a term of imprisonment for 12 months or more;”.

   [6] Reg 1.20KC(3) of the Migration Regulations 1994 (Cth).

   Is it reasonable to approve the sponsorship?

2. 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: reg 1.20KC(4).

   What is the length of time which the sponsor completed the sentence?

   The wording in reg 120.KC(4)(a) provides the relevant consideration is “the length of time since the sponsor completed the sentence (or sentences) for the relevant offence or offences”.  The sponsor told the Tribunal that he completed his sentence in 2021 for an assault which occurred on 25 June 2014. Three years have passed since the sponsor has completed his sentence, and according to the sponsor’s Australian Federal Police digital national police certificate dated 4 October 2024 submitted by the sponsor, the sponsor has not reoffended.  Given the relatively small amount of time since the sponsor has completed his sentence, the Tribunal affords this a small amount of weight in favour of it being reasonable to approve the sponsorship.

   What is the best interests of the child of the visa applicant and the sponsor?

3. There is no evidence before the Tribunal that the parties have any children together.

   What is the length of the relationship between the parties?

   The sponsor told the Tribunal that the relationship between the parties started in 2018 and the parties were Islamically married on 11 April 2018 (which is consistent with the marriage certificate on the Department file) and had their wedding on [Date]. The parties started living together in 2019. The Tribunal has not otherwise considered or made any findings as to whether the parties’ relationship meets the requirements of the Act. Given the parties have been married for over six years, the Tribunal affords this some weight in favour of it being reasonable to approve the sponsorship.

   Other reasons

4. The representatives submissions dated 1 September 2024 provide a number of reasons claimed to be reasonable to approve the sponsorship which will be discussed in turn.

   a. Improvements in the sponsor’s mental health

5. The sponsor submitted a letter dated 20 August 2024 from [Dr A], Consultant Psychiatrist, Queensland Government which states that the sponsor is a patient and has paranoid schizophrenia.  Additionally:

   [h]e was being treated under the auspices of the Queensland Mental Health Act 2016, via a Forensic Order from [04]/2014 until [09]/2021 when it was revoked by the Mental Health Review Tribunal.  As per the normal process of stepping patients down to less restrictive regime a Treatment Support Order was made at that Tribunal.  This initial step was slowed due to his spending a significant amount of time in Lebanon with his wife and the difficulties that the Covid 19 situation raised re travel.

   The Treatment Support Order was the revoked by the Mental Health Review Tribunal on [02]/2024 and given his level of stability and insight into the need for follow up and treatment of his mental illness he did not met criteria for a Treatment Authority and so has been voluntary since that date.

   …

   He has shown that he has taken on board the psychoeducation provided by the service in regards his illness and treatment needs.  He fully recognises his signs and symptoms of the illness (insight) and the need for treatment including medications especially when there is any minor deterioration of his mental state and has been able to avoid any significant deterioration due to this level of insight.

   Given the level of supports that he has from his family and friends there are no obvious concerns that he will be perfectly capable of being able to support himself and his wife if they are allowed to return to Australia as a married couple.  He has already shown a significant level of maturing and growth of insight into his illness and the ongoing treatment required.

   The Tribunal affords the sponsor’s compliance with his treatment regime some weight in favour of it being reasonable to approve the sponsorship.

   b. No criminal charges in Australia or Lebanon for the past ten years

   The sponsor submitted a statement dated 27 August 2024 stating his responsibility for his actions, remorse for his mistakes and regret for the harm caused.  He mentions his diagnosis of schizophrenia and “for a long time, I did not understand the full extent of how this condition affected my behaviour.  However, I am now receiving regular treatment, including medication, which have greatly improvement by mental health.  I have learned to manage my condition and as a result, I have become a more stable and responsible person.”  The sponsor also indicates that he has no recorded offences for 10 years reflecting that he is law abiding and responsible.  In support of this, the sponsor also submitted a translated police record check from the Directorate General of Internal Security Forces, Command of Judicial Police, Bureau of Police records (which the representative indicates is a Lebanese Police check – though is not clear on the face of the document) indicating that there is no convictions recorded against the sponsor.  The sponsor submitted an Australian Federal Police check dated 4 October 2024, indicating that no new disclosable court outcomes were recorded against him.  Given the sponsor’s remorse and that he has not reoffended, the Tribunal affords this some weight in favour of it being reasonable to approve the sponsorship.

   c. Character references

6. The sponsor submitted two character references from:

   a.[Mr B] (unsigned), dated 15 August 2024, the sponsor’s uncle.  He mentions the sponsor’s schizophrenia diagnosis “approximately 13 years ago”, the difficulties associated with the illness and how in the sponsor’s case it “resulted in an extensive criminal record.”  [Mr B] notes the sponsor’s consistent medical treatment which have improved his “mental health, stability and behaviour.”  He notes the parties have been married for almost five years and for much of that period the parties have lived together in Lebanon. The sponsor’s relationship with the visa applicant has “been a significant factor in their [sic] ongoing progress.”

   b.[Ms C] (unsigned), dated 19 August 2024, the sponsor’s sister-in-law who has known the sponsor for eight years.  [Ms C] indicates that the sponsor was diagnosed with schizophrenia, has stuck with his treatment plans, regularly goes to therapy and takes his prescribed medication.  He has become more stable and balanced.  He is dedicated to the visa applicant to whom he has been married for more than 5 years and has spent most of that time living with her in Lebanon.  The parties’ relationship is strong, and according to [Ms C] it is a huge part of the sponsor’s recovery and the “Stability and support from their relationship have been key to their progress.” 

7. The Tribunal affords the character references from the sponsor’s family a small amount of weight in favour of it being reasonable to approve the sponsorship.

   d. Visa applicant’s character reference

8. The sponsor submitted a translated statement from the visa applicant indicating that the sponsor is “a wonderful and very affectionate person.  He treats me wonderfully and fulfills all my requests and desires with love. I am fully aware of his medical condition that led to legal issues.”  The visa applicant mentions that he has and continues to receive treatment and his health is stable.  The parties have lived in Lebanon for a long time, and the sponsor has treated her well.  The visa applicant has decided to have a child with the sponsor, had been pregnant but miscarried.   Other than the parties’ claims, no evidence of this was submitted.

9. The sponsor told the Tribunal that the visa applicant had played a role in getting him to where he is now.  He was unwell at the time of the offences with schizophrenia but he takes his medication and he is now well.  When he started his treatment in 2014, he was not taking his medication on time but the visa applicant makes him take it on time.

10. The visa applicant told the Tribunal that the sponsor was a good person and that the problems had happened a long time ago.  Now, there are no problems, he is good to her and the family.  He treats her well, loves her and respects her.  Their relationship was strong, increasing every day and the parties wanted to have a baby together.

11. The Tribunal affords the character reference from the visa applicant a small amount of weight in favour of it being reasonable to approve the sponsorship.

    Police checks

12. Approval of the sponsorship may also be refused if the Minister (or Tribunal on review) has requested a police check from the sponsor under reg 1.20KC(5) and the sponsor does not provide the police check within a reasonable time: reg 1.20KC(6).  The Tribunal has already discussed the Lebanese police check above and the Australia Federal Police check above.

    Has the sponsor consented for the Department to disclose to the visa applicant any conviction for a relevant offence as required in accordance with cl 309.222(2)?

13. The Tribunal discussed whether the sponsor had consented to the Department disclosing the convictions for the relevant history to the visa applicant, and he said he could not recall being asked that.  However, he consented to the Tribunal disclosing and discussing his criminal history with the visa applicant.  The visa applicant told the Tribunal that the sponsor had been sentenced for a criminal offence a long time ago.  Once was for racing, another time was for drugs and on another occasion he had hit someone.

14. The Department file indicates that the visa applicant wrote to the Department on 17 April 2021 in response to the Department 29 March 2021 which invited the visa applicant to comment on the information in relation to the sponsor’s application having been refused approval under reg 1.20KC. The visa applicant indicated that she was aware of the sponsor’s criminal convictions which occurred from when he was 16 to 22 years old and that he had been suffering from schizophrenia from an early age.  She states that: “Dr Schneider further states that his assault offences can be attributed to his mental health, and that since the last incident in 2014 there have been no further episodes of problematic behaviour.”

15. Based on the above, the Tribunal is satisfied that the sponsor has consented to the disclosure to the visa applicant of any conviction of the sponsor for a relevant offence. Therefore, the visa applicant meets cl 309.222(2).

    CONCLUSION

16. For the reasons discussed above when considered cumulatively, the sponsor appears to be remorseful for his past behaviour.  It has been a significant period since he committed his last offence.  He has a mental health condition and from the account of his doctor the sponsor is compliant with treatment, responded well and has the support of his family and his visa applicant wife which appears to have positively impacted his behaviour.  Having regard to the evidence before it, the Tribunal considers it reasonable to approve the sponsor’s sponsorship of the visa applicant.

17. On the evidence before the Tribunal the requirements of cl 309.222 of Schedule 2 are met. 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

1. 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 309.222 of Schedule 2 to the Regulations.

   Brygyda Maiden
   Member