2115943 (Migration)
[2025] ARTA 846
•19 March 2025
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 3001CASES
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 32Any 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 not meet cl.820.211(2)(a) and cl.820.211(2)(d) of the Regulations. The delegate found that the applicant’s substantive visa ceased [in] September 2011, and he remained in Australia as an unlawful non-citizen until he was granted a Bridging visa [in] June 2020. The delegate found that the applicant did not meet the Schedule 3 criteria, and there were no compelling reasons for not applying those criteria. Consequently, the delegate did not consider the family violence claims.
The applicant applied to the AAT for review of the delegate’s decision on 5 November 2021.
The applicant appeared before the Tribunal on 5 March 2025 to give evidence and present arguments. He was represented in relation to the review by his registered migration agent who attended the hearing.
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.
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.
I have not made any specific findings about whether the parties were in a genuine and continuing de facto relationship at the time of application, as it was unnecessary for me to do so. I accepted at face value the claims made by the applicant that the parties were in a genuine and continuing de facto relationship for the purposes of this decision. I considered the information set out below to be relevant because there have been conflicting claims about the nature of the parties’ relationship, the applicant’s conduct towards the sponsor, and the events immediately prior to the breakdown of the parties’ relationship. Additionally, the submissions made by the applicant’s representative regarding waiver of the Schedule 3 requirements refer to those matters.
The following information provided to the Department by the sponsor was put to the applicant in accordance with s 359A of the Act:
·The sponsor left the relationship because she was fearful of the applicant. She moved interstate due to fears for her own safety.
·The sponsor spent $34,000 of her own funds on the parties’ relationship between March and November 2020, including $14,000 for the visa application.
·The applicant contrived the relationship and contacted NSW Police in order to secure a Partner visa and remain in Australia.
·The applicant sent her a text message on [a day in] November 2020, which said:
“Just wanted to say sorry, truly, sorry, I’m a complete idiot, and yes I have terrible problems, and yes your family is right, I’m not good for you or anyone. I destroyed our lives together, I couldn’t control the way I reacted, and how sometimes I felt again threatened and endangered, even if that was not the case. There’s really nothing much I can say but that I am truly sincerely sorry. I will be for the rest of my life. And I wish you happiness and true love with some one that respects you, not like me, I can see that now. And I’m really sorry for that. Take care.”
The applicant agreed that he had sent the above text message to the sponsor and said he initially blamed himself for the breakdown of the relationship and felt guilty about it. The applicant said his psychologist has subsequently explained that his reaction of blaming himself when things go wrong is common for those with post-traumatic stress disorder (PTSD). The applicant gave oral evidence that he knew nothing about the family violence exception. He denied the sponsor’s claims that he had contacted the police to assist with his visa application, or that the relationship was contrived by him to enable him to remain in Australia. The applicant said that NSW Police had persuaded him to provide a statement, which ultimately led to the ADVO. The applicant gave oral evidence that both parties contributed to the cost of the visa and the sponsor was not working after they moved to [Town 1]. He was paying for all of the rent and other bills and the sponsor was spending money in an excessive and irrational manner. The applicant gave oral evidence that the parties frequently argued about money.
The applicant’s representative submitted that it is common for victims of family violence to blame themselves for the abusive conduct of others.
I have not put any weight on the information provided by the sponsor that the applicant contrived the relationship or that he contacted police because he believed that doing so would assist him to obtain a positive immigration outcome. Those claims are not supported by any independent, reliable evidence. I am satisfied that both parties contributed to the cost of the applicant’s visa application, because that is consistent with the documents they submitted to the Department at the time of application.
There is uncontested evidence that the sponsor arranged for her father and sister to travel from South Australia to assist her to move out of the parties’ [Town 1] when the relationship broke down in mid-November 2020. The applicant’s representative submitted documents to the Tribunal, including an Application for an ADVO by NSW Police [Officer A], dated [in] November 2020. The ADVO application sets out the history of the parties’ relationship and various allegations regarding the sponsor’s conduct towards the applicant. It states that the sponsor attended [Town 1] Police Station on [a day in] November 2020 in relation to an alleged assault upon the applicant whilst in a vehicle in their driveway the previous week, specifically that she had punched the applicant on the left upper arm three times and verbally abused him. The sponsor denied assaulting and abusing the applicant when interviewed by police. [Officer A] stated:
“…the [sponsor] described a volatile relationship with issues of imbalance, miscommunication and money stress. She also conceded that there is frequent arguing within the relationship but that the [applicant] explodes in anger and verbal abuse. [The sponsor] stated that this was the reason for her leaving on the morning of [a day in] November, 2020 and not returning home or answering calls from the [applicant]. She stated she was scared of what might happen and that the [applicant] is often not rational and that his moods and behaviour frighten her. The [sponsor] was informed that Police would make application for an Apprehended Violence Order to protect the [applicant] from further alleged abuse and that she would be required to attend court. The [sponsor] was not charged with assault as she denied the assault and there aren’t any witnesses or injuries which corroborate this allegation…”
It is uncontested that the sponsor did not attend [Court 1] on [a day in] November 2020. I accept that the sponsor was notified of the hearing but had already left NSW on that date. A Final ADVO was granted by the Magistrate at [Court 1] to protect the applicant from the sponsor.
There is consistent and compelling evidence that the parties’ relationship deteriorated after they moved to [Town 1] in September 2020, and became increasingly volatile. According to the documents submitted, they frequently argued about their finances and the sponsor’s drinking. On one occasion, the sponsor allegedly demanded that the applicant drive her home from a night out together despite being intoxicated and the applicant’s supervising driver. The applicant was a learner driver at the time. Other documents submitted indicate that there was ongoing tension between the parties after the applicant was charged by NSW Police with driving (the sponsor’s car) without a driver’s licence [in] June 2020. According to documents that the applicant submitted to the Department, he was required to attend [Court 2] on [a day in] October 2020 as a result of the charge and was convicted and fined.
The applicant’s explanation regarding the text message that he sent to the sponsor on [the day in] November 2020 was supported by a statutory declaration by the applicant’s previous de facto partner, [Partner A], dated 11 March 2025. [Partner A], who is employed as [an occupation 3], stated that the applicant frequently blamed himself whenever he became overwhelmed, and things went wrong. There is no independent evidence from medical or other allied health professionals to support the claims made regarding the applicant’s response when confronted with stressful life events. The text message is contemporaneous evidence of the applicant’s direct communication with the sponsor at the time that the parties’ relationship broke down. It demonstrates that there were complex dynamics in the relationship and that the applicant was remorseful about his conduct towards the sponsor.
The information that the sponsor provided to NSW Police in November 2020, and subsequently in her statutory declaration to the Department, indicates that she was fearful of the applicant when she packed her belongings, with assistance and support from family members, and left the parties’ home in November 2020. Furthermore, as set out in application for the ADVO, the sponsor told NSW Police that she slept elsewhere on the night of [the day in] November 2020 and did not return the applicant’s calls because she was scared of what might happen. That evidence is contemporaneous, and I have given it some weight.
Does the applicant meet the Schedule 3 criteria, or are there compelling reasons for not applying those criteria?
An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl 820.211(2)(d).
It is not in dispute that the applicant did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria. These criteria are set out in the attachment to this decision.
Criterion 3001
In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision.
The applicant’s substantive visa ceased [in] September 2011, and he lodged the Partner visa application on 7 October 2020. Having regard to the definition of the relevant day in criterion 3001(2), I find that the applicant did not make the application within 28 days of the relevant day, which was [in] September 2011.
As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.
Compelling reasons
As I have found that the applicant does not meet the relevant Schedule 3 criteria, I am required to consider whether there are compelling reasons for not applying the criteria.
The expression ‘compelling reasons’ is not defined for these purposes. However, reasons that are compelling should ‘force or drive the decision-maker’ ‘irresistibly’ to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.
Reasons for not holding a substantive visa
The applicant confirmed his immigration history as set out in the delegate’s Decision Record. He said he came to Australia to explore business opportunities and that his return ticket from [Country 1] to Brisbane was paid for by one of his sponsors. The applicant said he travelled from Brisbane to [City 1] following an invitation from a friend and former colleague, [Mr A], who arranged and paid for a one-way flight. However, when he arrived at [Mr A’s] home in Kuranda, he was expected to sleep on a mattress on the floor and was not provided with food or money for expenses. The applicant said he and [Mr A] fell out, and he was subsequently evicted from [Mr A’s] home. This was six weeks before the return flight to [Country 1], which was departing from Brisbane. The applicant said he then stayed with one of [Mr A’s] friends for a few weeks. He slept on the woman’s couch, but she repeatedly propositioned him for sex. They had a falling out and the woman asked him to leave. Another friend invited the applicant to stay with her, but she was in the process of moving and had very limited funds. The applicant said he called a migration agent to discuss his options and was told that he would likely be placed into detention if detected by immigration officials, which frightened him. The applicant said he became depressed and suicidal.
In response to questioning by the Tribunal, the applicant said he did not have any funds left to return to Brisbane by plane or bus. He considered hitchhiking but decided against it. The applicant said his business in [Country 1] was not-for-profit and he did not have any money in [Country 1] that would enable him to purchase a ticket to travel from [City 1] to Brisbane. The applicant claimed that he tried to put back his return flight to [Country 1]. There was also a big storm in [City 1] at the time, possibly a cyclone, which hampered his efforts.
In his written submissions received after the hearing, the applicant’s representative asserted that there were unforeseen circumstances and events out of the applicant’s control between September 2011 and October 2020. The representative said:
·The applicant’s arrival in Australia was at the behest of an invitation of [Agency 1] for an interchange to experience activities and knowledge of [business models] in Queensland. The applicant was invited by [Mr A] to collaborate and start a joint venture along with his company [named], and the applicant’s company [named].
·After the initial two weeks of engagements, [Mr A] assumed responsibility for organising the remainder of the applicant’s travel and accommodation while in Australia. [Mr A] booked a flight from Brisbane to [City 1], where the applicant intended to stay for the following 10 weeks with the goal of establishing a business connection.
·The applicant’s situation began to unravel when he arrived in [City 1]. The applicant had no place to stay except on [Mr A’s] floor. It was evident that [Mr A] did not have the financial means to cover the expenses as agreed prior to departure. [Mr A] had no income or assets and was receiving Centrelink payments. The applicant had no way of contacting his family to explain the dire situation.
·The applicant attempted to address the situation with [Mr A], but [Mr A] responded with verbal and psychological aggression, threatening to evict the applicant. Six weeks prior to the applicant’s scheduled return flight from Brisbane to [Country 1], the applicant was forced to leave [Mr A’s] residence and found himself homeless.
·The applicant sought temporary lodgings at a hostel in [City 1] in exchange for cleaning. Given the applicant’s lack of financial means to travel from [City 1] to Brisbane, he spiralled into depression and anxiety that went untreated for years.
·The applicant’s inability to return home and his sudden shift to an unlawful status caused significant distress, fear and paranoia. The applicant feared potential legal consequences, including imprisonment, without understanding how to navigate the legal system or seek help. The applicant’s representative submitted that the applicant’s experience “…has been nothing short of a nightmare...”
The applicant’s oral evidence regarding the circumstances that resulted in him not holding a substantive visa was vague and implausible. I do not accept that the applicant made any genuine attempts to travel to Brisbane to catch his return flight home to [Country 1], or that he attempted to reschedule the flight. The applicant’s claim that he could not afford to travel from [City 1] to Brisbane is unconvincing given the relatively modest cost of the trip. The claims made by the applicant’s representative that the applicant spiralled into severe depression and anxiety after his visa expired is not supported by any independent or credible evidence, for example medical or allied health reports. The evidence before me indicates that the applicant did not seek assistance for his mental health issues until after the cessation of the parties’ relationship. I do not accept that a big storm, even a cyclone, could have delayed the applicant’s travel for six weeks. It is unclear why the applicant could not contact his family in [Country 1] to explain his situation given the various communication options available to him.
I am not persuaded that the circumstances that led to the applicant not holding a substantive visa are a compelling reason for not applying the Schedule 3 criteria.
Fears of being detained
The applicant gave oral evidence that he feared being detained if discovered by Australian immigration officials. This made him anxious, and he avoided social activities as a result.
While I accept that the applicant was concerned about being detected and potentially transported to an immigration detention facility, this was a foreseeable consequence of his decision to remain in Australia after his three-month Business (Short Stay) visa ceased in September 2011. There is no evidence to suggest that the applicant attempted to regularise his immigration status prior to June 2020.
I am not satisfied that the applicant’s fear of being detained is a compelling reason for not applying the Schedule 3 criteria.
The parties’ relationship
The applicant’s representative submitted that the parties’ relationship began in a happy and promising way. He said:
·The parties were in love and shared common objectives, particularly the desire to build a life together. As they prepared to apply for the Partner visa, the applicant “emphasised the importance of creating a life where both could fulfil their dreams and responsibilities, in full compliance with the legal conditions of the country.”
·The parties moved to [Town 1] on 24 September 2020, and pooled their resources, signed a lease agreement and had a great social life with friends and family who supported their long-term continuing and genuine relationship.
·The parties had many plans after the visa was granted, including to travel the world, get married and start their own family. However, their plans took a different route when they applied for a Partner visa, and it did not go as planned. The applicant’s representative said “…The visa was refused, and they could not leave the country to lodge a partner visa offshore due to the COVID-19 pandemic.”
I accept that the parties formed a de facto relationship in March 2020, and that the relationship ended in November 2020. It is uncontested that from March to June 2020, the sponsor was visiting her family in South Australia and was unable to return to New South Wales due to COVID-19 related travel restrictions. The parties lived in different states during that period.
I do not accept the submissions made by the applicant’s representative regarding the timing of the visa refusal. It is not disputed that the applicant applied for the visa on 7 October 2020 and that the parties’ relationship broke down around six weeks later, [in] November 2020. The Department refused the visa on 20 October 2021, which was around 11 months after the breakdown of the relationship.
I accept that the parties were in a de facto relationship for nine months from March to November 2020. However, the existence of a genuine and continuing spouse or de facto relationship is itself a criterion for the grant of a Partner visa. A compelling reason to justify waiver of the Schedule 3 criteria must therefore involve something in addition to the basic requirement for the grant of the visa.
I am not satisfied that the genuineness or length of the parties’ relationship is a compelling reason for not applying the Schedule 3 criteria.
COVID-19 pandemic and associated travel restrictions
The applicant gave oral evidence that the COVID-19 pandemic affected his ability to return to [Country 1]. He claimed that [Country 1] had many deaths due to COVID-19 and it was impossible to travel due to the border closures in both countries.
The applicant’s representative submitted the following after the hearing:
·The applicant was unable to leave Australia as originally intended due to the global COVID-19 pandemic and the severe restrictions placed on international travel.
·Most airlines ceased international flights, leaving travellers stranded or unable to make previously scheduled flights.
·The applicant made every effort to leave Australia in accordance with the regulations governing his stay. He continuously monitored government updates and sought out flight options as soon as they became available, but each time he encountered significant barriers. Flights were cancelled with little notice, and new travel restrictions were imposed without warning, creating further delays.
·Since the lifting of travel restrictions, the applicant has been actively seeking to resolve his status and return to compliance with immigration regulations.
·[Country 1] recorded around 150% more deaths than would be expected due to the country’s healthcare system being underprepared and lacking sufficient funding. [Country 1] had one of the highest COVID-19 fatality rates in the world.
I accept that the COVID-19 pandemic caused significant disruption and uncertainty throughout the world. Australia’s borders were closed during some periods, making international departures near impossible. However, the disruption occurred for a relatively finite period in the context of the applicant’s almost nine-year stay as an unlawful non-citizen. The applicant contacted the Department in June 2020 (soon after being charged by NSW Police with driving without a licence) and was granted a Bridging visa shortly afterwards. It was open to the applicant to make contact with the Department in September 2011, or at a later point in the following years, to regularise his immigration status. Instead, the applicant chose to remain in Australia as an unlawful non-citizen and work, despite not having work rights.
In the absence of any reliable corroborating evidence, I am not prepared to accept that the applicant has made any genuine efforts to leave Australia since his Business (Short Stay) visa ceased in September 2011. The assertion made by the applicant’s representative that the applicant continuously sought out flight options during the COVID-19 pandemic is unconvincing. Travel restrictions were lifted some years ago and it was open to the applicant to return to [Country 1] as soon as flights became available. The applicant has been working in Australia almost continuously since 2011 and was able to send money home to his parents. There is no evidence before me to suggest that he lacks the necessary funds to return to [Country 1].
I am not satisfied that the COVID-19 pandemic and associated travel restrictions are a compelling reason for not applying the Schedule 3 criteria.
Relocation of the sponsor – lodging an offshore application during the COVID-19 pandemic, and the applicant’s ability to support himself in [Country 1]
The applicant’s representative submitted following the hearing that the Tribunal must be satisfied that at the time of application, on 7 October 2020, if the applicant were required to return to [Country 1] to file an offshore Partner visa applicant it is unlikely that the sponsor would travel to live with the applicant while that application was being processed.
The applicant’s representative submitted:
“…[t]he Tribunal must accept that the uncertainty of living in temporary circumstances in [Country 1] during this time would be extremely difficult and the applicant did not have the resources to survive on his own in his country. Furthermore, the sponsor sees Australia as her home and would not be able to assimilate into [Country 1] culture and does not understand [Language 1]. Due to the sponsor’s age and the COVID-19 outbreak in [Country 1] at the time of application, securing reliable work may be challenging.”
The applicant’s representative asserted that failure to waive the requirement of Schedule 3 would result in an indefinite hiatus in the applicant’s relationship with the sponsor. The likely delay in processing an offshore visa application would be lengthy and give rise to hardship.
I am not persuaded that there would be an indefinite hiatus in the relationship if the applicant was required to lodge an offshore Partner visa, or that the period of the separation would have created significant hardship. Many other couples were in a similar situation during the COVID-19 pandemic.
I accept that the sponsor may well have found it difficult to secure work in [Country 1] due to her personal circumstances, including her inability to speak [Language 1]. Given the claim made that [Country 1] experienced a higher number of deaths from COVID-19 than other similar countries, I accept that the sponsor may have been reluctant to travel there. However, there was no requirement whatsoever for the sponsor to travel to [Country 1] with the applicant to lodge an offshore Partner visa application. It was open to the sponsor to remain in Australia while the applicant returned to [Country 1] to lodge the application. Any couple in a genuine relationship where an applicant is required to lodge a Partner visa offshore is likely to face some emotional hardship. The parties could have maintained contact and offered one another emotional support and encouragement via a wide range of modern technologies.
I do not accept that the applicant was unable to return to [Country 1] because he lacked the financial resources to support himself in his home country. The applicant gave oral evidence at the hearing that he maintains regular contact with his parents and sent them money when he had the financial resources to do so. It was open to the applicant to seek assistance from family and/or friends in [Country 1] until he could secure employment or other forms of financial support. I note that the applicant operated a business in [Country 1] before he travelled to Australia in 2011. He speaks fluent [Language 1] and English and has worked in many industries in both [Country 1] and Australia, including [specified industries]. The applicant has a broad range of employment experience.
I am not persuaded that the relocation of the sponsor during the COVID-19 pandemic or the applicant’s limited access to financial resources in [Country 1] are compelling reasons for not applying the Schedule 3 criteria.
Lack of funds to lodge an offshore application
The applicant gave oral evidence at the hearing that the parties did not have sufficient funds to lodge an offshore Partner visa application.
I accept the parties’ had limited funds in 2020 to apply for an offshore Partner visa. However, this a common barrier for those who are in a genuine relationship and wish to migrate to Australia. I note that the applicant had previously worked in [Country 1] and am satisfied that he would have been able to secure employment once he returned. The sponsor had her own business and, according to the applicant, sold her Sydney apartment around the time that the parties moved to [Town 1]. The sponsor likely had the ability to continue working in Australia and contribute to an offshore Partner visa application. The parties had a variety of options open to them, including saving or borrowing the money needed to make the application.
I am not satisfied that the lack of the funds to lodge an offshore Partner visa application is a compelling reasons for not applying the Schedule 3 criteria.
Applicant’s mental health diagnoses
The applicant provided various documents to the Department and Tribunal regarding his mental health problems. Those documents confirm that the applicant has been diagnosed with a number of conditions, including depression, generalised anxiety disorder and PTSD. A report, medical certificate and mental health care plan by his general practitioner, [Doctor A], dated 25 November 2020, state that the applicant presented with symptoms of depression, anxiety, low mood and insomnia. [Doctor A] said the applicant’s symptoms commenced two weeks prior after a domestic violence situation. A later report by [Doctor B], general practitioner, dated 8 March 2023, said the applicant has had situational and PTSD from childhood problems. The applicant’s psychologist, [Psychologist A], provided a certificate of injury form, dated 18 December 2024, and a brief report, dated 14 March 2024. [Psychologist A] said the applicant’s presentation fulfils the DSM-5 criteria for generalised anxiety disorder and PTSD. In her report of 14 March 2024, [Psychologist A] said she had an emergency counselling appointment with the applicant after he had unpleasant exchanges of words with his workmates over the last three to four weeks, resulting in a sudden deterioration of his mental health.
The applicant gave oral evidence that he has been attending sessions with his psychologist on a weekly basis by telephone, and that he finds the treatment helpful. He has been seeing his psychologist for more than a year. The applicant said he had a traumatic childhood and left home when he was 14 years old. He was sexually assaulted by an older sibling and physically assaulted by his father. The applicant said his parents sometimes locked him in a small cupboard. The applicant gave oral evidence that he had been sending money home to his family in [Country 1] but can no longer afford to do so. The applicant said he speaks with his parents every week or two but has limited contact with his siblings. The applicant was visibly distressed during the hearing when discussing his childhood. He stated that the sponsor’s conduct compounded his mental health problems. The applicant gave oral evidence that he does not take any medication for his mental health conditions, although his general practitioner prescribed anti-depressants after the breakdown of the parties’ relationship.
I accept that the applicant has been diagnosed with mental health conditions and that he has experienced traumatic experiences during his life time, including his childhood. Despite his diagnosed conditions, the applicant has managed to work almost continuously in Australia since his substantive visa ceased, mostly as [an occupation 4]. The applicant gave oral evidence that he is currently self-employed as [an occupation 1] and earns between $1,000 and $1,500 per week after tax. The applicant said he was in a de-facto relationship with [Partner A] for around two and a half years after the breakdown of the parties’ relationship. His work vehicle is owned by [Partner A].
It is positive that the applicant finds the counselling sessions with his psychologist to be beneficial. Those sessions are currently funded by NSW Victims Services. I accept the applicant’s oral evidence that the sponsor’s conduct exacerbated his diagnosed conditions. Nonetheless, it is open to the applicant to continue with his mental health treatment by attending counselling sessions with a psychologist. If it is not practical or financially viable for the applicant to continue attending telephone sessions with his current psychologist, he could establish a relationship with a new psychologist in [Country 1]. As mentioned above, the applicant was previously operating a business in [Country 1] and is fluent in both [Language 1] and English. I am satisfied that he could find employment and earn sufficient income to pay for counselling sessions with a psychologist.
I am not satisfied that the applicant’s diagnosed mental health conditions are a compelling reason for not applying the Schedule 3 criteria.
Family violence
The applicant’s representative submitted that the applicant suffered family violence committed by the sponsor and that the relationship officially ended on [a day in] November 2020 due to the nature and recurrence of the family violence. The applicant’s representative submitted that the violence occurred during the parties’ relationship and that the applicant meets the criteria for the immediate grant of a Permanent Partner visa (Subclass 801).
The representative claimed that his firm notified the Department of the family violence in March 2021, but this was not acknowledged by the Department, leading to the refusal of the visa in October 2021. The assertions made by the applicant’s representative regarding the refusal of the applicant’s visa are contrary to the delegate’s Decision Record, which specifically refers to the applicant’s family violence claim, as follows:
“…Whilst you have also requested that the application continue on the basis of your family violence claims; the family violence provisions can only be assessed if you meet all eligibility requirements of the UK820/BS801 visa. As I have found that you do not meet the schedule 3 criteria and that you do not have any compelling reasons the waive the criteria, I find that you do not meet the eligibility requirements of the UK820/BS801 visa and I am therefore not required to assess your family violence claims under the family violence provisions…”
The applicant submitted various documents to the Department and the Tribunal to support his family violence claim, including the Final ADVO referred to above. I am satisfied that the Final ADVO meets the legislative criteria for a judicial claim of family violence. Although the sponsor was not present at the court, there is uncontested evidence that she was advised of the proceedings and had an opportunity to attend.
A statutory declaration received after the hearing from [Mr B], dated 11 March 2025, corroborates the applicant’s account of the sponsor’s conduct towards the applicant. I accept that [Mr B], who is the applicant’s friend and former work colleague, lived with the parties at [Town 1] for a few weeks in November 2020 and directly observed interactions between the parties. The applicant’s former partner, [Partner A], also provided a statutory declaration, dated 11 March 2025. [Partner A] attested to the applicant’s good character and said they remain close friends.
While it is uncontested that a Final ADVO was granted by [Court 1] to protect the applicant from the sponsor, there is no provision in the legislation that provides that if a person has experienced family violence that this, of itself, provides a compelling reason to waive the Schedule 3 criteria. As discussed above, I am satisfied that the parties’ relationship was increasingly volatile and dysfunctional before it broke down. It is evident from the documents that both the applicant and the sponsor provided to the Department that the applicant’s conduct towards the sponsor caused her to be fearful for her own safety and wellbeing in the period immediately prior to her moving out of parties’ [Town 1] home. The applicant does not dispute that the sponsor packed her belongings and left the parties’ home on or around [a day in] November 2020. The applicant acknowledged in his text message to the sponsor, set out above, that he had difficulty controlling his reactions and regretted his conduct towards the sponsor. The assertion made by the applicant’s representative that the parties’ relationship officially ended on [that day in] November 2020 due to the nature and recurrence of the family violence perpetrated by the sponsor is not supported by the evidence, including the sponsor’s conduct in leaving the parties’ home. The applicant acknowledged that the sponsor initiated the breakup of the parties’ relationship.
I have had regard to the evidence of family violence submitted to support the application, including the applicant’s oral evidence, the ADVO application by NSW Police and the Final ADVO. I also considered the statutory declarations by witnesses received after the hearing. I accept that as the parties’ relationship has now ended, the applicant would not be able to apply for a Partner visa if he returned to [Country 1] based on any claimed relationship he had with the sponsor. There is no information before me to indicate that the applicant would meet any criteria for the grant of any visa to be able to reside in Australia.
I am not persuaded that the fact that the applicant has experienced family violence is a compelling reason for not applying the Schedule 3 criteria.
Community and volunteer work
The applicant provided a certificate to the Tribunal to show that he completed [Occupation 2] training in 2019. The applicant gave oral evidence at the hearing that he established a men’s mental health support group in [City 1] in June 2024, and about 15 people regularly attend that group. He sees this as a way of giving back to the community.
The applicant’s representative submitted character references to support the application, including from [Mr C] and [Mr D]. [Mr D] reports that the applicant is a person of integrity, kindness and compassion. [Mr C] said the applicant has high energy, passion and dedication to his endeavours. Both [Mr D] and [Mr C] confirmed that the applicant is involved in volunteer work in the community.
I accept that the applicant has been volunteering his time, including organising a men’s mental health group since he returned to [City 1] in June 2024. A number of acquaintances and a former partner, [Partner A], have attested to his good character.
While the applicant’s volunteer work is commendable, I am not persuaded that this is a compelling reason for not applying the Schedule 3 criteria.
Overall assessment
I have considered the above issues both separately and cumulatively and am not satisfied that there are compelling reasons for not applying the Schedule 3 criteria.
As I am not satisfied that there are compelling reasons for not applying the Schedule 3 criteria, the applicant does not meet cl.820.221(d)(ii) of the Regulations. There is no evidence before me that the applicant meets the requirements set out in the alternative subclauses in cl.820.211.
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 2025
Representative for the Applicant: Mr Roosewelt Sanfilippo (MARN: 5513713)
ATTACHMENT - Extract from Migration Regulations 1994
Schedule 3
3001
(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.
3003
If:
(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.
3004
If 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.
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