2120175 (Migration)

[2024] AATA 540

2120175 (Migration) [2024] AATA 540 (8 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Marimi Tanag (MARN: 1386887)

CASE NUMBER:  2120175

MEMBER:Maxina Martellotta

DATE:8 January 2024

PLACE OF DECISION:  Perth

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)(c) of Schedule 2 to the Regulations

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

Statement made on 08 January 2024 at 10:03am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation requirement – sponsor convicted of a relevant offence – length of the relationship – time since completing the sentence – applicant continued to support the sponsor – no children of the relationship – decision under review remitted           

LEGISLATION

Criminal Code Act 1913 (WA), s 189
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.15, 1.20

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 22 December 2018 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 applicant did not satisfy cl 820.221(4)(a). This was because of the sponsorship limitation in reg 1.20KC.

4. The applicant appeared before the Tribunal on 5 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from her sponsor ([Spouse A]). Other evidence considered by the Tribunal included materials provided by the applicant to the Tribunal and the Department. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing by video.

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

   Is the applicant sponsored?

7. Clause 820.211 requires, at the time of application, the applicant to meet one of several alternative criteria. These include cl 820.211(2)(c) which requires the applicant to be, at the time of application sponsored, if the applicant’s spouse or defacto partner has turned 18 –by the spouse or defacto partner.  

8. Clause 820.221(4) requires that, 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.

   Sponsorship limitations

9. Approval of sponsorship is subject to limitations. R.1.20J of the Regulations sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship, and in r.1.20KA which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. There are further limits imposed by r.1.20KB in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010.

10. Regulation 1.20KC sets out limitations 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.

11. Regulation 1.20KC of the Regulations provides that the sponsorship of each applicant for a Partner or Prospective Marriage visa must be refused if the sponsor has been convicted of a ‘relevant offence’ and has a ‘significant criminal record’ in relation to it. A ‘relevant offence’ is defined in 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.

12. 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).

13. 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).

14. 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).

15. According to the Explanatory Statement, the purpose of these legislative provisions is to protect visa applicants seeking to enter Australia on a Partner visa from being sponsored by people with convictions for child sex or other serious offences indicating that the sponsor might pose a significant risk to the visa applicant or any child in their care. The legislative provisions strengthen the integrity of the visa program and improves support to visa applicants by giving the Department the ability to share the sponsor’s relevant offences with the visa applicant, so they can decide whether to continue with the visa application and be able to make this decision based on information that may be relevant to their future safety and well-being. The legislative provisions also allow the Department to refuse to approve the sponsorship for people with serious and violent criminal pasts, and thereby preventing a visa from being granted to potentially vulnerable people, particularly women and children.[1]

    [1] Explanatory Statement, Migration Legislation Amendment (2016 Measures No. 3) Regulation 2016

16. In this case the applicant is sponsored by her claimed spouse, [Spouse A]. According to materials provided in support of the visa application [Spouse A] was born in [specified year] in Australia and is an Australian citizen. The Tribunal is satisfied and finds that at the time of the application, the applicant was sponsored by her sponsor and that her sponsor had turned 18 and was an Australian citizen. The Tribunal concludes that cl 820.211(2)(c) is satisfied.

17. The sponsor disclosed in the sponsor form 40 that he had a conviction relating to a person under the age of 18. According to the Department file, [Spouse A] was requested to provide an Australian police check. The National Police Certificate provided by [Spouse A] confirmed that he had been convicted in the [named] Court of the offence, Unlawfully and Indecently Dealt with a Girl under 13 years – Criminal Code Act 1913 (WA) s 189(2) and had received a sentence of imprisonment of [term] [in] December 2016.

18. The Tribunal is satisfied that the sponsor’s conviction was for an offence that meets the definition of a relevant offence as defined in reg 1.20KC(2)(a): violence against a person, including (without limitation) murder, assault, sexual assault and the threat of violence. The Tribunal is also satisfied that the sponsor has a significant criminal record in relation to the relevant offence as defined by reg 1.20KD(1)(c): the sponsor has been sentenced to a term of imprisonment of 12 months or more.

19. This is not a case in which the sponsor was pardoned, or the conviction was nullified. This means that unless the discretion in reg 1.20KC(4) is exercised approval of the sponsor must be refused: reg 1.20KC(3). Exercise of the discretion requires consideration of matters including the length of time since the sponsor completed the sentence, the best interests of any children of the sponsor or the applicant and the length of time of the relationship between the sponsor and the applicant.

20. On 12 January 2021 the sponsor was invited by the Department to comment on adverse information pertaining to his conviction. In response the applicant advised the Department that:

    a)They had commenced communicating through a dating site in 2012. That progressed to the sponsor visiting the applicant in her home country.

    b)The sponsor is accepted and recognised as her partner by her family.

    c)The sponsor has financially assisted members of the applicant’s family.

    d)After the sponsor returned to Australia from a visit in 2015 he contacted the applicant and disclosed that he had been contacted by the Police regarding an allegation made by a former partner’s daughter.  The sponsor was very distraught by the allegation which he denied.  He offered to end the relationship given the seriousness of the allegation. The applicant did not leave the relationship and she supported the sponsor as he went through the criminal process.

    e)They maintained contact throughout the sponsor’s imprisonment.  Upon his release the sponsor invited the applicant to visit him in Australia and she was granted a 12 month multi-entry visa. The applicant visited on three occasions in 2018 and during that time she met members of the sponsor’s family.  In August 2018 they decided to marry and the applicant returned to Australia in December 2018 for their marriage ceremony.

    f)Since then they have not been apart.  They do not intend to have any children of their own.

21. The sponsor provided the following response to the Department:

    a)After leaving school he joined [Employer 1 and worked there] for six years.  In that time he met his first wife (in about 1979/80) who had [children] from a previous relationship.

    b)They build a home in 1984. At the time their relationship was under some stress due to financial and personal issues between them. He was working three jobs at the time. In 1985 the sponsor and his partner had a trial separation. However after six weeks he returned to their home however the relationship did not work out and they permanently separated.

    c)He continued to maintain contact with his ex-wife  and her [children] over a number of years.

    d)In 1986 he commenced a new relationship and had a child with that person. That relationship continued for a few years. He remained on good terms with that person. In 1990 he commenced another relationship with a person who had [children] from a previous relationship. That relationship ended after some years.

    e)He married his second wife who was from [Country 1] in 2001. She and her son lived in Australia and they lived together for about 8 years. He has an ongoing relationship with his stepson who remained living with him.

    f)He met the applicant in 2012 and their relationship developed over time. In late 2015 he was contacted by Police and was subsequently charged with two counts of Unlawfully and Indecently dealing with a girl under the age of 13 years.  He immediately told the applicant about the situation. He was extremely distressed and said he would understand if she decided to end the relationship, but she told him that she loved him and would stand by him.

    g)He does not know why the complainant made the allegations against him. He defended the charges and was acquitted of one charge but found guilty on one count.  He was completely ‘shattered’.

    h)Whilst he was not required to undergo any sex offences courses whilst in prison, he voluntarily completed a number of courses.  He served [term] before being released on parole.

    i)In 2018 the applicant came to Australia and they spent time together and decided to get married.  They married in December 2018 and subsequently applied for a partner visa.

    j)He was employed in senior roles for many years, but he lost that employment as a result of the charges and conviction. Notwithstanding those circumstances he has continued to have the strong support of the applicant, his children, family, friends and former work colleagues.

    k)The conviction was for an incident which allegedly occurred over 35 years ago.  He has never previously or since been in any trouble with the Police.

    l)He has been completely truthful throughout the visa process and disclosed his conviction from the very start.

    m)He and the applicant are in a genuine relationship and wish to be together for the rest of their lives.  The applicant at all times was aware of the circumstances and remains committed.

22. In addition to the above response, the following evidence was provided to the Tribunal and to the Department:

    a)A copy of a Parole Order dated [in] July 2017 which stated that the sponsor was released [in] July 2017 subject to supervision and parole requirements which expired [in] March 2018 (which was the sentence maximum date).

    b)The applicant does not have any children. The sponsor has [adult] sons from previous relationships, they include his stepson who resides with the sponsor and the applicant.

    c)The applicant and sponsor claim to have met online in 2012. They met in person for the first time in 2013 and again on subsequent visits mad by the sponsor to [Country 2] in 2014 and 2015.

    d)In late 2015 the sponsor was contacted by Police and interviewed regarding a historical allegation of indecently dealing with a daughter of a previous partner. The sponsor disclosed this information to the applicant and offered to end the relationship. The applicant confirmed that she did not wish to end the relationship and would continue to support the sponsor.

    e)Their relationship was maintained during the years in which the charges went to trial and the sponsor was convicted and served his prison sentence. Upon completing his sentence and parole, the applicant regularly travelled to Australia and spent time with the sponsor.

    f)The applicant and sponsor were married [in] December 2018 and have lived together since their marriage.

    g)The applicant and sponsor are both employed.

23. The sponsor in his oral evidence told the Tribunal that:

    a)The allegation and charges came as a complete shock. He has at all times maintained his innocence.

    b)He unsuccessfully defended  one of the counts , but he accepted the sentence and served his time. He had no prior or subsequent criminal history since completion of his sentence.

    c)The charges and conviction were an extremely stressful time in his life, and he is grateful for the support of the applicant, family, friends and colleagues.

    d)He previously was employed within [his field] for 30 years and was well regarded. He continues to be supported by numerous former colleagues, family and friends.

    e)He and the applicant do not want children of their own and he underwent a vasectomy in January 2021.

24. The applicant in her oral evidence confirmed that the sponsor had immediately told her about the charges and despite offering to end the relationship she was clear in her commitment to the relationship which continued after the conviction and during the period the sponsor was sentenced. She said that they have been married for five years and they have a stable and loving relationship. She works in [industry 1]. The applicant provided character and work references supporting her in her application.

25. A significant number (21) of statements and character references provided on behalf of the sponsor were included in the materials on the Department file and provided to the Tribunal. These statements have been provided by former work colleagues, family members, former partners and family friends. In essence these statements all attest to knowledge of the sponsor’s conviction and that the allegations were completely out of character for the sponsor. The statements speak to the high regard and good character of the sponsor who is described as law-abiding, generous, caring and supportive of family and friends.

26. The sponsor also provided a copy of the booking for his vasectomy.

27. Other evidence provided to the Department included materials pertaining to the relationship between the applicant and the sponsor these included:

    a)Utility accounts in the sponsor’s name for the address at which the applicant and sponsor reside.

    b)Correspondence from a utility provider addressed to the applicant and the sponsor

    c)Evidence of money transfers made by the sponsor to the applicant for periods commencing July 2013 to September 2019.

    d)Copy of a bank statement for a joint account held in the name of the applicant and sponsor.

    e)Copy of the sponsor’s last will and testament leaving the house to the applicant and naming her as a beneficiary of this estate

    f)Form 888 Statutory declarations provided by two friends who declare their knowledge of the relationship and attesting to it being a genuine and loving relationship.

    g)Statutory declarations provided by the applicant and sponsor regarding their relationship

    h)Copy of the marriage certificate and certified copy of the marriage certificate issued [in] December 2018 confirming the marriage between the applicant and sponsor on that same date.

    i)Social media posts and personal messages between the applicant and sponsor for various periods between May 2016 to November 2019.

    j)Photographs showing the applicant and sponsor together at various times and locations.

28. The Tribunal notes that according to the Form 40 Sponsorship application, the sponsor has disclosed he has previously sponsored one other person. He was previously married to [Ms A]. They were married in October 2001, separated in June 2009 and divorced in February 2013. He states that he sponsored that person in an application lodged in November 2001 and the visa was granted in March 2002. This information is confirmed by Department records which show a previous sponsorship application made in November 2001

29. As noted, the limitation in r.1.20J limits approval of sponsorship of partners so that the Australian sponsor is only able to successfully sponsor two partners within a lifetime and requires a period of at least five years between any two sponsorships. In this case the Tribunal is satisfied and finds that the sponsor:

    a)Has previously sponsored one other person in a successful application made in November 2001

    b)Has sponsored the applicant in this matter in an application made in December 2018

30. The Tribunal is satisfied that the limitation in r.1.20J does not have application. The Tribunal is otherwise satisfied on the facts of this case that the limitations in r.1.20KA and r.1.20KB do not have application.

1. In this matter the Tribunal finds that:

   a)it has been over five years since the sponsor has completed the sentence,

   b)the applicant and sponsor have known each other for some 11 years and have been married for five years

   c)there are no minor children whose interests are affected by the exercise of the discretion.

2. Regulation 1.20KC(4) does not provide an exhaustive list of prescribed considerations. The Tribunal further takes into account, the significant amount of evidence that has been presented attesting to the good character of the sponsor; that the Parole Order attests to the fact that the sponsor had no prior criminal history and had participated in voluntary programs; there has been no further criminal history since completion of the sentence; and also the applicant’s evidence that the sponsor immediately disclosed the circumstances of the allegations and she made an informed decision to remain in the relationship and continued to support the sponsor through that criminal justice process. The Tribunal notes that according to the signed Form 40, the sponsor consented to the Department disclosing to the applicant any relevant convictions. The Tribunal is satisfied that the requirement in cl.820.211(4)(b) is satisfied.

3. The Tribunal having considered the circumstances and documents relating to this review, concludes that it is reasonable to approve the sponsorship having regard to matters including the length of time since the sponsor completed the sentence, the best interest of any relevant children, the length of the relationship between the sponsor and the applicant and other factors presented in evidence pursuant to reg 1.20KC(4).

4. Approval of sponsorship can also be refused if the Minister requests a police check from the sponsor under reg 1.20KC(5) and the sponsor does not provide that check within a reasonable time: reg 1.20KC(6). In this matter the applicant and sponsor have provided their police checks within a reasonable time.

5. The Tribunal is satisfied that despite reg 1.20KC(3) it is reasonable to approve the sponsorship.

6. As noted cl.820.211 (2) (c) requires that the applicant is sponsored if their spouse or defacto has turned 18 – by the spouse or defacto partner.  For the purposes of subclause 820.211(2) (c ) the Tribunal is satisfied that the applicant is sponsored by their spouse ([Spouse A]) a person who has turned 18 years.[2]

   [2] A copy of the sponsor’s birth certificate shows he was born in [year].

7. The Tribunal is satisfied that the requirements of cl 820.211(2)(c) and cl 820.221(4) are met.

8. 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

9. 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)(c) of Schedule 2 to the Regulations

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

   Maxina Martellotta
   Member

   
   

   ATTACHMENT – Extract from Migration Regulations 1994

   1.15A     Spouse

   (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

   (2)If the Minister is considering an application for:

   (a)a Partner (Migrant) (Class BC) visa; or

   (b)a Partner (Provisional) (Class UF) visa; or

   (c)a Partner (Residence) (Class BS) visa; or

   (d)a Partner (Temporary) (Class UK) visa;

   the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

   (3)The matters for subregulation (2) are:

   (a)the financial aspects of the relationship, including:

   (i)       any joint ownership of real estate or other major assets; and

   (ii)      any joint liabilities; and

   (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

   (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

   (v)     the basis of any sharing of day to day household expenses; and

   (b)the nature of the household, including:

   (i)       any joint responsibility for the care and support of children; and

   (ii)      the living arrangements of the persons; and

   (iii)     any sharing of the responsibility for housework; and

   (c)the social aspects of the relationship, including:

   (i)       whether the persons represent themselves to other people as being married to each other; and

   (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

   (iii)     any basis on which the persons plan and undertake joint social activities; and

   (d)the nature of the persons’ commitment to each other, including:

   (i)       the duration of the relationship; and

   (ii)      the length of time during which the persons have lived together; and

   (iii)     the degree of companionship and emotional support that the persons draw from each other; and

   (iv)    whether the persons see the relationship as a long term one.

   (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).