2115943 (Migration) - [2025] ARTA 846

2115943 (MIGRATION) [2025] ARTA 846 (19 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2115943

Tribunal:General Member G Bartley
Place:Sydney
Date: 19 March 2025
Decision:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 19 March 2025 at 4:29pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – compelling reasons to waive Schedule 3 criteria – lengthy period of unlawful residence and employment – relationship ceased – judicial claim of family violence – Apprehended Domestic Violence Order – mental health issues – COVID-19 travel restrictions – contribution to the community – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994 (Cth), Schedule 2, cls 820.211, 820.221; Schedule 3, Criterion 3001
CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
Waensila v MIBP [2016] FCAFC 32
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS

On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024, proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
ISSUE
The issue in this review is whether the applicant, [named], meets the criteria in Schedule 3 to the Migration Regulations 1994 (Cth) (the Regulations) and, if not, whether there are compelling reasons for not applying those criteria.
APPLICATION FOR REVIEW
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) Subclass 820 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 7 October 2020 on the basis of his relationship with his sponsor, [named]. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Regulations. The primary criteria must be satisfied by at least one applicant.
The applicant’s representative advised the Department on 30 March 2021 that the relationship between the applicant and the sponsor had broken down on [a day in] November 2020, and that the applicant had been the victim of family violence committed by the sponsor.
The delegate refused to grant the visa on 20 October 2021 on the basis that the applicant did…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2115943 (Migration)

Details

AGLC: 2115943 (Migration) [2025] ARTA 846
Case: [2025] ARTA 846
Decision Date: 19 March 2025

CaseChat Overview and Summary

The applicant, a citizen of [Country 1], sought to appeal the Department's refusal to grant him a Partner (Temporary) (Class UK) visa, subclass 820 (Partner). The primary legal issue was whether there were compelling reasons to waive the Schedule 3 criteria of the Migration Regulations 1994, given the applicant's lengthy period of unlawful residence and employment in Australia, the breakdown of his relationship with the sponsor, and other relevant factors. The Tribunal considered evidence of family violence, a Final Apprehended Domestic Violence Order, and the applicant's contributions to the community, alongside the statutory requirements.

The Tribunal determined that, while the applicant had made significant contributions to the community and faced challenges such as family violence and mental health issues, these factors did not constitute compelling reasons to waive the Schedule 3 criteria. The Tribunal held that the applicant's unlawful presence in Australia for an extended period, coupled with his failure to meet the primary eligibility criteria for the visa, outweighed the mitigating circumstances presented. The Tribunal also noted that the relationship with the sponsor had ended, and there was no ongoing genuine relationship as required by the visa subclass.

The Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa. The Tribunal found that the applicant did not satisfy the compelling reasons test and that the primary criteria for the visa were not met. The decision was based on a comprehensive assessment of the evidence and the statutory provisions.

The Tribunal orders that the decision under review be affirmed, and the applicant's appeal is dismissed.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.BACKGROUND The applicant is [an age]-year-old citizen of [Country 1]. He has never been married and does not have any children. The applicant’s parents and siblings live in [Country 1]. He travelled to Australia [in] June 2011 after being granted a Business (Short Stay) visa, which ceased on [a day in] September 2011. The applicant was an unlawful non-citizen for eight years and nine months until [a day in] June 2020, when he made contact with the Department and was granted a Bridging visa. The applicant lives in Far North Queensland and is self-employed as [an occupation 1]. The sponsor is [an age]-year-old Australian permanent resident. She is a citizen of [Country 2] and first travelled to Australia in November 2004. The sponsor did not declare any previous marriages or de facto relationships in the application. Her parents and sister live in Australia. The applicant and the sponsor (the parties) stated in the application that they met via an online dating site in late 2019. They first met in person at [location 1] on 3 January 2020, and formed a relationship soon afterwards. The applicant moved into the sponsor’s [location 2] apartment on 10 March 2020. The parties registered their relationship with NSW Births, Deaths and Marriages [in] September 2020. CONSIDERATION OF CLAIMS AND EVIDENCE Prior to and at the hearing, the applicant’s representative submitted additional documents to the Tribunal to support the application, including but not limited to the following: a certificate confirming that the applicant qualified to become a NSW [Occupation 2] in 2019, an email from the applicant’s representative to the Department to advise that the parties’ relationship had broken down, submissions by the applicant’s representative, medical and psychological reports regarding the applicant, confirmation that the applicant has been approved for counselling through NSW Victims Services, a statutory declaration by the applicant, an application for an Apprehended Domestic Violence Order (ADVO), dated [in] November 2020, a Final ADVO issued to protect the applicant from the sponsor, dated [later in] November 2020, and a certificate of injury form completed by the applicant’s psychologist. At the conclusion of the hearing, the applicant’s representative requested additional time to provide further submissions, which the Tribunal granted until 12 March 2025. The applicant enquired about providing further witness statements and was advised that it was open to him to provide additional supporting evidence, including witness statements, by 12 March 2025. Following the hearing, the applicant’s representative submitted further written submissions, as well as statutory declarations and statements by witnesses. In making my decision, I have had regard to the information in the Department and Tribunal files, the oral evidence at the hearing, and the additional documents received after the hearing.

Evidence

Evidence Before The Court

The applicant and the sponsor (the parties) stated in the application that they met via an online dating site in late 2019. They first met in person at [location 1] on 3 January 2020, and formed a relationship soon afterwards. The applicant moved into the sponsor’s [location 2] apartment on 10 March 2020. The parties registered their relationship with NSW Births, Deaths and Marriages [in] September 2020. CONSIDERATION OF CLAIMS AND EVIDENCE Prior to and at the hearing, the applicant’s representative submitted additional documents to the Tribunal to support the application, including but not limited to the following: a certificate confirming that the applicant qualified to become a NSW [Occupation 2] in 2019, an email from the applicant’s representative to the Department to advise that the parties’ relationship had broken down, submissions by the applicant’s representative, medical and psychological reports regarding the applicant, confirmation that the applicant has been approved for counselling through NSW Victims Services, a statutory declaration by the applicant, an application for an Apprehended Domestic Violence Order (ADVO), dated [in] November 2020, a Final ADVO issued to protect the applicant from the sponsor, dated [later in] November 2020, and a certificate of injury form completed by the applicant’s psychologist. At the conclusion of the hearing, the applicant’s representative requested additional time to provide further submissions, which the Tribunal granted until 12 March 2025. The applicant enquired about providing further witness statements and was advised that it was open to him to provide additional supporting evidence, including witness statements, by 12 March 2025. Following the hearing, the applicant’s representative submitted further written submissions, as well as statutory declarations and statements by witnesses. In making my decision, I have had regard to the information in the Department and Tribunal files, the oral evidence at the hearing, and the additional documents received after the hearing. As discussed at the hearing, there is a non-disclosure certificate issued under s 376 of the Act in the Department file that relates to information provided by the sponsor following the breakdown of the parties’ relationship. It includes a statutory declaration by the sponsor and a report by her psychologist. Much of the information corresponds with the applicant’s oral evidence regarding the history and nature of the parties’ relationship. With a few limited exceptions, the information covered by the certificate is irrelevant to the issues to be determined by the Tribunal, including a report from the sponsor’s psychologist. I put the relevant information to the applicant at the hearing in accordance with s 359A of the Act. The applicant’s representative requested a brief adjournment to discuss the information with the applicant, which the Tribunal granted. Following the adjournment, the applicant’s representative advised that the applicant would prefer to provide an oral response at the hearing.

Decision

Reasons for decision

For the reasons above, the applicant does not satisfy the criteria for the grant of the visa. DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Date of hearing: 5 March 2025Representative for the Applicant: Mr Roosewelt Sanfilippo (MARN: 5513713) ATTACHMENT - Extract from Migration Regulations 1994Schedule 33001(1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).(2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:(a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or(b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or(c)if the applicant:(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or(ii) entered Australia unlawfully on or after 1 September 1994;whichever is the later of:(iii) the last day when the applicant held a substantive or criminal justice visa; or(iv) the day when the applicant last entered Australia unlawfully; or(d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:(i) the day when that last substantive visa ceased to be in effect; and(ii) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.3003If:(a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and(b)on 31 August 1994, the applicant was either:(i) an illegal entrant; or(ii) the holder of an entry permit that was not valid beyond 31 August 1994;the Minister is satisfied that:(c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and(d)there are compelling reasons for granting the visa; and(e)the applicant has complied substantially with the conditions that apply or applied to:(i) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and(ii) any subsequent bridging visa; and(f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and(g)the applicant intends to comply with any conditions subject to which the visa is granted; and(h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.3004If the applicant:(a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or(b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;the Minister is satisfied that:(c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and(d)there are compelling reasons for granting the visa; and(e)the applicant has complied substantially with:(i) the conditions that apply or applied to:(A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and(B)any subsequent bridging visa; or(ii) the conditions that apply or applied to:(A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and(B)any subsequent bridging visa; and(f)either:(i) in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or(ii) in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and(g)the applicant intends to comply with any conditions subject to which the visa is granted; and(h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

Ratio Decidendi

Legal Principle Established

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