2214821 (Migration)
[2025] ARTA 1923
•27 May 2025
2214821 (MIGRATION) [2025] ARTA 1923 (27 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2214821
Tribunal:General Member T. Quinn
Place:Melbourne
Date: 27 May 2025
Decision:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 27 May 2025 at 12:26pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – no substantial visa at date of application – compelling reasons to waive Schedule 3 criteria – genuine spousal relationship – lengthy stay in Australia – relationship possibly not exclusive – sponsor deceased – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 65, 338, 347
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; Schedule 3; rr 1.15, 4.12CASES
“T” v Minister for Immigration and Multicultural Affairs [2000] FCA 467
Babicci v MIMIA (2005) 141 FCR 285
Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, von Doussa, Moore and Sackville JJ, 7 November 1997)
He v MIBP [2017] FCAFC 206
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (24 February 2020)
Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
MZYPZ v MIAC [2012] FCA 478
Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220
Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827
Nejad v Minister for Immigration and Multicultural Affairs [2000] FCA 741
Plaintiff M64/2015 v MIBP [2015] HCA 50
Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407
Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105
Sein v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 370
Singh v Minister for Home Affairs [2020] FCAFC 7
Waensila v MIBP [2016] FCAFC 32
Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 963Any 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
APPLICATION FOR REVIEW
On 20 November 2018, the applicant (‘the applicant’) applied for a Partner visa[1] (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’) (‘the visa’) on the basis of her marriage to her sponsor, [named].[2]
[1] Specifically, a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.
[2]At that time, Class BS contained only one subclass: Subclass 801 (Partner) and Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of these visas are set out in Parts 801 and 820 of Schedule 2 to the Migration Regulations 1994 (‘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.
On 21 September 2022, a delegate of the Minister (‘the delegate’) refused the applicant’s partner visa application, not being satisfied that at the time of application the applicant was the spouse of the sponsor as defined by section 5F of the Act (‘the delegate’s decision’).[3]
[3] See clauses 801.221 and 820.211 of Schedule 2 of the Migration Regulations 1994 (‘the Regulations’).
On 7 October 2022, the applicant applied for a review of the delegate’s decision with the Administrative Appeals Tribunal (‘AAT’).[4]
[4]Pursuant to sections 338(2) and 347 of the Act. This application for review was in relation to the decision to refuse the subclass 820 temporary partner visa as is customary in the review of combined partner application refusals given only one decision can be the subject of a review application by the same person pursuant to regulation 4.12 of the Regulations.
On 14 October 2024, the 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 (‘the Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
On 21 May 2025, the applicant appeared before the Tribunal in person to give evidence and present arguments. The applicant was represented in relation to the review and her representative also attended the hearing of 21 May 2025. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant(s), in as much detail as necessary to enable the decision maker to properly consider the case that is being put.[5]
[5]Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61.
I have proceeded to a decision having regard to all the information before me. For the following reasons, the decision under review is affirmed. In reaching my conclusions, I have regarded:
a.the oral evidence of the applicant at the hearing;
b.the submissions of the applicant’s representative;
c.all material filed by or on behalf of the applicant; and
d.other relevant documents on the Tribunal and Department files.
Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the reasons set out below. The reasons incorporate reference only to that information found to be fundamental or materially significant to the determination of the issues in the case.[6]
[6]In this regard, please see Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (24 February 2020) at [82] and [96].
BACKGROUND - TIMELINE
The applicant first arrived in Australia in or around 2008 on a student visa. She gave evidence at hearing that she was onshore unlawfully after applying to extend her student visa and there was fraud involved. She gave evidence that she was apprehended by police and placed in immigration detention for one day before making a protection visa application. She gave evidence that her protection visa application was not successful.
The applicant remained onshore on a student visa until making a further student visa application in February 2017 which was not successful. She sought a review of that refusal decision with the AAT.
The applicant claims to have met the sponsor in March 2017 when the sponsor was visiting Melbourne (having travelled from his place of residence in Queensland).
The applicant claims in a written statement filed that the sponsor moved to Melbourne in May 2017. However, the applicant’s legal submissions indicate that the sponsor was in prison from May until September 2017 with the exception of a two-week period.
The applicant’s review application before the AAT in relation to her student visa refusal was unsuccessful and the decision was handed down on 16 October 2018.
The applicant and sponsor were married [in] November 2018 and applied for the partner visa [on] 20 November 2018, approximately one month after her student visa refusal decision was affirmed by the AAT.
At the time of the applicant’s application for a partner visa, she had not held a substantive visa for many months, noting she has held a bridging visa since early 2017 (when she applied for a further student visa). There are particular provisions which apply in cases where a substantive visa has not been held for more than 28 days prior to a partner visa application being made (‘the Schedule 3 provisions’). The Schedule 3 provisions require that compelling reasons must exist for the application to be made onshore (see ‘Statutory and Legal Framework’ below).
In March 2019 and 19 April 2021, the Department wrote to the applicant inviting her to provide compelling reasons for waiving the Schedule 3 provisions.
On 30 May 2019 and 17 May 2021, the applicant filed submissions in relation to the Schedule 3 provisions, primarily relying on the ill health and medical conditions of the sponsor and claiming that the applicant was assisting the sponsor with his health, medical treatment and conditions.
On 21 September 2022, the delegate refused the applicant’s application on the basis of the standard spousal criteria under clause 820, not accepting that the applicant and sponsor were in a genuine spousal relationship. The delegate did not base their refusal decision on the Schedule 3 provisions.
On 17 April 2023, the sponsor died of [specified medical conditions].
On 30 April 2023, the sponsor’s burial took place in [Suburb 1].
On 10 May 2023, the sponsor’s death was registered by one of his parents.
On 14 August 2024, the applicant sought an updated Medicare letter from the Tribunal.
On 19 August 2024, over a year after his death, the applicant informed the Tribunal that the sponsor had died.
On 23 April 2025, the applicant filed a copy of the sponsor’s death certificate.
STATUTORY AND LEGAL FRAMEWORK
The delegate decided this case on the basis of the standard spousal criteria under clause 820 of Schedule 2 of the Regulations, not being satisfied that the applicant and sponsor were in a genuine spousal relationship and was particularly concerned that the applicant and sponsor may not be living together.
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, 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.[7]
[7]See clause 820.211(2)(d).
It is not in dispute that the applicant in the present case 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 in the present case 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.
I consider the first issue in this case is whether there are compelling reasons for not applying the criteria set out in 3001, 3003 and 3004 of Schedule 3 of the Regulations.
The sponsor is now deceased.
In the present case the visa applicant claims to have been the spouse of the sponsor, now deceased, who was a Korean born Australian Citizen, gaining his Australian citizenship in 2008. I am satisfied that [the sponsor] was an Australian Citizen at all relevant times.
‘Spouse’ is defined in section 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis.[8] In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and the sponsor’s household and their commitment to each other as set out in clause 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in clause 1.15A(3) of the Regulations are effectively questions which must be answered in standard partner visa applications.[9]
[8] Section 5F(2)(aa)-(d).
[9] He v MIBP [2017] FCAFC 206.
Clause 820.221(2) of the Regulations requires that the applicant would have continued to meet the spousal requirements at the time of decision if the sponsor had not died and that she would have continued to be the sponsor’s partner if he had not died. The issues for consideration are very similar to those undertaken where the sponsor remains alive.
The application in this case is unique in that the applicant fails to meet a pre-requisite factor that must be met prior to any meaningful determination about whether or not a genuine spousal relationship existed or would exist if the sponsor were still alive and as such the nature of the relationship has been considered in that context.
I have carefully considered all matters in relation to the material and evidence before me. The Tribunal is an independent statutory body. It must reach its own conclusions as to the merits of the applicant’s case, which may involve a summary assessment of how and to what extent each factor of clause 1.15A is relevant and applicable, independently of any conclusions and processes engaged in by the delegate.
Assessments in these cases involves satisfaction as to whether or not certain criteria have been met – or whether compelling reasons exist - and not on the objective existence of a particular fact.[10] In determining whether it is so satisfied, the Tribunal is not required to uncritically accept any or all of the claims made by the applicant and/or sponsor, and I have not done so. A decision maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.[11]
[10] Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 at 15.
[11]Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7].
If a decision maker does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepts or rejects individual pieces of evidence.[12]
[12]Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67].
It is for the applicant, in this inquisitorial process, to put whatever evidence or argument they wish to a decision maker in order to enable that decision maker to reach the requisite state of satisfaction.[13]
[13]Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76].
CONSIDERATION OF CLAIMS AND EVIDENCE
Criterion 3001
In order to meet Schedule 3 criterion 3001, the application must have been validly made within 28 days after the ‘relevant day’. For the purposes of this application, the ‘relevant day’ is the last day the applicant held a substantive visa.
The last day the applicant held a substantive visa was February 2017.
The applicant does not meet criterion 3001 of Schedule 3 of the Regulations (hereinafter referred to as ‘3001’) as she ceased holding a substantive visa more than 28 days prior to lodging the application which is the subject of this review. This is not in issue and is conceded by the applicant.
Criterion 3003
Criterion 3003 only applies to applicants who have not, on or after 1 September 1994, been the holder of a substantive visa, and on 31 August 1994 was either an illegal entrant or the holder of an entry permit that was not valid beyond that date. The applicant was not such a person, and accordingly criterion 3003 does not apply.
Criterion 3004
Criterion 3004 of Schedule 3 requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant. In addition, the Minister must be satisfied that the applicant would have been able to be granted the visa if the applicant had applied on the day he or she last held a substantive or criminal justice visa; or would have satisfied the criteria when he or she last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and the last visa or entry permit held (if any) was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or further entry permit, while the holder remained in Australia.
Significantly, if I am not satisfied that there are compelling reasons for granting the visa then the assessment for Criterion 3004 ends there.
Compelling reasons
Prima facie, a non-citizen who has remained in Australia without a substantive visa in the 28 days prior to their application does not satisfy the requirements of the Act. The starting position is that the applicant’s application must fail.
An exception has been carved out, however, to this strict question of fact to accommodate circumstances where there are compelling reasons not to apply 3001. The applicant must demonstrate that factual circumstances exist which constitute compelling reasons for the Tribunal not to apply the law as it would usually apply to a non-citizen applicant.
It is recognised that there are situations in which non-citizens remain in Australia without a substantive visa through circumstances over which they have no control and situations where there are compelling reasons for granting them a visa to remain.[14] The Explanatory Statement to the Migration Regulations (Amendment) 1996 (No 75) (‘the Explanatory Statement’) introduced the new clause 820.211(2)(d) into the Regulations to include the waiver provision to recognise the hardship that can result if an unlawful non-citizen wishes to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas.[15]
[14] PAM3: Sch3
[15]See Singh v Minister for Home Affairs [2020] FCAFC 7 at [59] for discussion in this regard.
The Regulations do not prescribe the circumstances that need to be considered when assessing whether or not ‘compelling reasons’ exist. Circumstances must be considered on a case-by-case basis.[16] All of the circumstances of the case, individually and cumulatively, should be considered in determining whether there are compelling reasons for granting the visa. Consideration of the likely consequences of not granting the visa may assist in considering whether particular circumstances are compelling.[17]
[16] Document ID VM-6214, clause 8.7.
[17] PAM3: Sch3.
Decision makers must keep in mind that the intent of the waiver provisions is to allow persons whose circumstances are genuinely compelling to regularise their status.[18] The provisions are not intended to give, or be perceived to give, an unfair advantage to persons who:
a.Fail to comply with their visa conditions; or
b.Deliberately manipulate their circumstances to give rise to compelling reasons; or
c.Can leave Australia and apply for a Partner visa outside Australia.[19]
[18] Document ID VM-6214, clause 8.7.
[19] Document ID VM-6214, clause 8.7.
As a general rule, the existence of a genuine spouse relationship and/or the hardship suffered from separation if the applicant were to leave and apply for the visa outside Australia are not in themselves compelling reasons to waive Schedule 3 criteria.[20] This is because a genuine relationship forms the basis of all partner visa applications, and hardship caused by separation, whilst it differs in degree from one case to another, is common in the partner visa caseload, particularly in the offshore context where partners may be separated for extended periods during visa processing.[21] Policy intends that the waiver provision should not be applied where it reasonable to expect the applicant to leave Australia and apply outside Australia for a partner visa.[22] This ensures fairness and equity to other applicants and discourages deliberate noncompliance whilst also preserving the integrity of the partner visa program in general and waiver provisions specifically.[23]
‘Compelling Reasons’ – the law
[20] Document ID VM-6214, clause 8.7.
[21] Document ID VM-6214, clause 8.7.
[22] Document ID VM-6214, clause 8.7.
[23] Document ID VM-6214, clause 8.7.
The expression ‘compelling reasons’ is not defined in the Act or Regulations. The ordinary dictionary meaning is ‘brought about by moral necessity’. The reasons advanced
should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria.[24]
[24]See MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478; (2012) 127 ALD 510 at [10], Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 at [24] and Singh v Minister for Home Affairs [2020] FCAFC 7 at [27].
Reasons that are compelling should ‘force or drive the decision-maker’ ‘irresistibly’ to some end.[25] The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied.[26] Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made.[27]
[25]Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31].
[26]MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24].
[27]Waensila v MIBP [2016] FCAFC 32.
ARE THERE COMPELLING REASONS IN THIS CASE?
The sponsor is now deceased.
On 19 August 2024, the applicant filed a statement that she and the sponsor had an argument in April 2023 and the sponsor left the house and did not answer her calls or texts. She states that on 19 April 2023 she got a call from a ‘strange woman’ telling her the sponsor was taken to hospital and died the next day, that his parents had come to the hospital from Brisbane. This applicant claimed in this statement that on ‘[w]hen I asked where the crematorium was, my in-laws called me “an unlucky woman” and refused to tell me until the very end. Then on 20 April, I got a call that he had been cremated. Secret mistress!! My husband had an affair with her. He went to the hospital with his secret mistress. It was she who called my parents-in-law and me.’
However, at hearing, the applicant gave evidence that she saw the body in hospital and that although she was not able to attend or participate in the funeral because her parents in law blamed her for the sponsor’s death and told her not to attend, she had arranged the funeral. This evidence is not consistent with the statement filed on 19 August 2024.
The applicant gave evidence at hearing that she arranged the funeral, but she made no mention of this in her statement of 19 August 2024 and has provided no corroborating documents for this such as booking or payment receipts, phone records, emails or a funeral order of service or program.
When I asked the applicant at hearing about who had informed her of the sponsor’s death, she said it was a female friend of the sponsor. When I put to her that she had filed a statement that the sponsor had a mistress, the applicant said she only knew that she was a friend and was not sure if this was a mistress. I asked why she had said mistress in her statement and the applicant gave evidence that she later became suspicious but still did not know for sure.
The applicant has filed a statement with the Department that, early in her marriage with the sponsor, the sponsor’s father visited them in November 2018 and the sponsor and his father argued and the sponsor told the applicant he would ‘have to be out for a short time… and he would call me. He left home with his father.’ This statement went on to say that the applicant did not find out her husband’s whereabouts until March 2019 when a friend called to tell her the sponsor was in prison. She felt ‘the sky was falling… tears covered my eyes. I could not believe that this kind of absurd thing happened to me’. Her statement goes on expressing shock, disbelief, confusion and disappointment.
However, legal submissions filed 30 May 2019 indicate that the sponsor was in prison from [May to] September 2017 with the exception of a two-week period in August 2017. I asked the applicant about this period at hearing. I asked whether the applicant had been in prison in Queensland or Victoria, and she said she did not know and that he had not told her. She gave evidence that she did not know he was in prison. I asked her where she thought the sponsor was during these months and she said they were not living together at that time. She gave evidence that they were dating but not living together so she did not know he was in prison. I asked how she could have been dating him during that four-month period if he was in prison and she gave evidence that ‘back then he was living in Brisbane’. I reminded the applicant that she had filed a statement with the Department indicating that the sponsor moved to Melbourne in May 2017. She then gave evidence that she meant to say that they saw each other but not in regular contact as she had not decided about him. She gave evidence that when he did not contact her for three months, she thought he did not want to see her. I noted that this was the first time the applicant had indicated that there was a three-month period in the relationship with no contact. She responded that the sponsor did not really tell her clearly about everything and he often dodged questions. She then said he had told her he was going on a business trip for that period from May 2017. I indicated to the applicant that hundreds of pages have been filed in this case including many statements signed by her and she had never said that her husband told her he was going on a business trip for 4 months before the day of hearing. She said she submitted detailed statements after their wedding and thought that the period before the wedding was not that important.
At hearing, in enquired about whether the sponsor had any children. The applicant gave evidence that the sponsor had told her that he had a daughter from his first marriage named [Name A]. She did not know how old this child was. When I asked whether the sponsor had a relationship with his child, the applicant said that he did not talk about this. When I asked if he spoke to his child on the phone at all, the applicant gave evidence that he did not because his ex-wife would not let his daughter speak to him.
The divorce certificate filed with the Department indicates that the sponsor had a son named [Son A] born in 2007. I put this to the applicant. She gave evidence that she might be confused but she was not sure. He was not 100% sure if it was a boy or a girl but the Korean name was [Name A]. I put to the applicant that she had actually retrieved that name ([Name A]) from the sponsor’s death certificate which was registered by the sponsor’s parent and she denied this, saying her husband had told her this name.
The applicant gave evidence at hearing that she no longer speaks to or has any relationship with the sponsor’s parents or sister as they blamed her for the sponsor’s death. I note, however, that no statements in support of the relationship from the sponsor’s parents or sister were filed prior to his death. When I asked the applicant about this at hearing, she gave evidence that her representative had not told her they were necessary.
During the hearing, I explained the law in relation to the Schedule 3 provisions set out above and that the applicant needed to demonstrate that there were compelling circumstances for granting the visa. In invited her to give evidence about any compelling circumstances that existed in her situation. She said if the visa is not granted ‘I think I will die’. When I asked why she thought this she said, ‘I have been living here for so long and it’s my second home and how could I leave my home?’. The applicant gave evidence that her mother and [a sibling] continue to live in South Korea. The applicant gave evidence that if the sponsor was still alive, he would have attended the hearing to give evidence in support of the applicant and the relationship.
I explained to the applicant that the substantive aspects of her claim for compelling reasons filed with the Department centred around the ill health of the sponsor and the care the applicant offered him. I explained again that now he was deceased, she needed to give evidence about any compelling reasons to grant the visa. The applicant gave evidence that she has good memories of spending time with her husband here in Melbourne and wants to ‘stay here and live here and accomplish the plans were shared together for our future. I would like to live here.’
The applicant’s representative’s oral submissions at hearing focussed primarily on the claim that the relationship and the compelling reasons around his health would have continued if the sponsor had not died. I reminded him that compelling circumstances needed to be shown at the time of decision Dr Tai-Bong Ri reiterated the applicant’s evidence about her memories and said that the applicant has fiends onshore and was praying to the sponsor about the outcome of her tribunal hearing.
Evidence and credibility
The Tribunal Guidelines in relation to assessing credibility dictate that evidence is to be assessed in its entirety, not just in isolated parts.[28] The guidelines also state that Members should focus on what is objectively or reasonably believable in the circumstances. The Tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.[29] Where evidence is incoherent, vague or lacking the detail or knowledge where greater detail or knowledge might be expected of a person in the applicant’s claimed position, the weight placed on the applicant’s evidence may be limited and the applicant’s credibility may be questioned.[30]
[28]Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, von Doussa, Moore and Sackville JJ, 7 November 1997); Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220 per Sackville J, with whom North J agreed, at [50]; Sein v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 370
[29]Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALR 347 at 348.
[30]Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827 per Tamberlin J at [9], upheld on appeal, Nejad v Minister for Immigration and Multicultural Affairs [2000] FCA 741; Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 963 per Goldberg J at [20] to [23]; “T” v Minister for Immigration and Multicultural Affairs [2000] FCA 467 per Drummond, Matthews and Mansfield JJ at [27]-[47]
I found much of the applicant’s evidence to be inconsistent and/or implausible. I did not find her to be a credible witness. Save in exceptional cases, the credibility of an assessed motivation will be supported or undermined by its coherency with the surrounding circumstances.[31] I consider the applicant is motivated to secure a positive migration outcome.
[31]See Singh v Minister for Home Affairs [2020] FCAFC 7 at [84].
I am not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet clause 820.211(2)(d)(ii).
Spousal criteria
I accept that the applicant and the sponsor were validly married. Taking the evidence as a whole, I do not accept that there was a genuine spousal relationship at the time of application or that there would have been a genuine spousal relationship between the applicant and the sponsor at the time of decision if the sponsor had not died. There are many inconsistencies in the evidence before me as set out above, limited photos of the couple, inconsistent evidence about the couple’s living arrangements, a suggestion that the relationship was not exclusive in the applicant’s statement about the sponsor’s mistress in August 2024. Further, during the hearing the applicant had very limited knowledge about the circumstances of her husband in relation to his prison terms and his child. It is not necessary to make any formal findings in relation to the spousal relationship in circumstances where I have found the Schedule 3 criteria are not met. I note, as obiter, that the evidence before me does not suggest a genuine spousal relationship during the sponsor’s life.
I note that there has been an anonymous dob-in in this case which has already been put to the applicant (and responded to by the applicant) by the Department. I have not placed any weight on this adverse information as it pre-dates the sponsor’s death and I did not find it relevant to my considerations in this case.
CONCLUSIONS
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.
Dates of hearing(s): 21 May 2025
Representative for the Applicant: Dr Joseph Tai-Bong Ri
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.
0
18
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