2215472 (Migration)

[2023] AATA 2203

2215472 (Migration) [2023] AATA 2203 (21 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2215472

MEMBER:Senior Member Michael Cooke

DATE:21 June 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 21 June 2023 at 1:18pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – special return criterion – previous conviction and deportation – no provision to waive criterion and applicant permanently excluded from re-entering – previous visa applications refused on character grounds – compelling and compassionate circumstances – sponsor’s age, health and daily care needs – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 55, 65
Migration Regulations 1994 (Cth), Schedule 2, cl 309.226, Schedule 5, criterion 5001

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 Immigration on 14 October 2022 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 30 June 2021 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (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 visa applicant did not satisfy cl.309.226 because the applicant satisfies Special Return Criteria 5001 (Migration Regulations 1994 Schedule 5).

4. [The review applicant] appeared before the Tribunal on 13 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter [Ms A] and his son - [Mr B].

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant satisfies Special Return Criteria 5001 (Migration Regulations 1994 Schedule 5).

   309.226

7. If the applicant has previously been in Australia, the applicant satisfies special return criteria 5001 and 5002.

8. It is a requirement for the grant of a Partner (Provisional) visa that the applicant satisfies Special Return Criteria 5001 (Migration Regulations 1994 Schedule 5).

   Schedule 5 — Special Return Criteria

   5001

9. The applicant is not:

   (a) a person who left Australia while the subject of a deportation order under:

   (i) section 200 of the Act; or

   (ii) section 55, 56 or 57 of the Act as in force on and after 19 December 1989 but before 1 September 1994; or

   (iii) section 12, 13 or 14 of the Act as in force before 19 December 1989; or

   (b) a person whose visa has been cancelled under section 501 of the Act, as in force before 1 June 1999, wholly or partly because the Minister, having regard to the person's past criminal conduct, was satisfied that the person is not of good character; or

   (c) a person whose visa has been cancelled under section 501, 501A or 5016 of the Act, if:

   (i) the cancellation has not been revoked under subsection 501C(4) or 501CA(4) of the Act; or

   (ii) after cancelling the visa, the Minister has not, acting personally, granted a permanent visa to the person; or

   (d) a person whose visa has been cancelled under section 501BA of the Act if the Minister has not, acting personally, granted a permanent visa to the person after that cancellation.

10. In her visa application, the applicant declared that she was previously known as [Alias 1]. The applicant declared a previous drug trafficking offence while in Australia - to the authorities. Departmental records indicate that [Alias 1] was convicted of drug trafficking and subsequently deported under section 55 of the Act [in] September 1990. Thus, Special Return Criteria 5001 applies to her.

11. The Tribunal acknowledges that there is no provision to waive Special Return Criteria 5001. Thus, the applicant is permanently excluded from re-entering Australia.

    The Hearing

12. The Tribunal notes that oral evidence was given by the sponsoring spouse and his two children with the applicant - his son [Mr B] and [Ms A] his daughter. Both indicated to the Tribunal that they were the parents of young and school age children.

13. [Mr B] (speaking in English) explained that the whole life of the five siblings was totally disrupted. This was because of frequent trips back and forth by their father to see their mother in the Lebanon. This had a dramatic impact on him. He insisted it had led to him being unable to read or write properly in English and Arabic. His dearest wish was to see his own children properly educated in Australia. He said he ended up at one stage living alone in Australia as a [Age]-year-old with the care of his [Age]-year-old brother. He married at [age] years old. He said he basically grew up on the streets as a result. He had no wish to visit the Lebanon again and wanted to live a safe and happy life in Australia and see his children progress.

14. He indicated that various previous agents had encouraged them to apply for various visas but essentially the agents did nothing but suck money from the family. Only their authorised recipient (Mr Laba Sarkis) had made any effort to help them.

15. He noted that his mother now lived entirely alone in the Lebanon. She was situated on the 6^th floor of a block of flats. Sometimes she never descended the stairs because (in her condition it was all too onerous to walk down the flights of stairs. She was now [Age] years old – he informed.

16. His sister, [Ms A], said she could not read Arabic or write it properly though she gave her evidence in Arabic. There had been a failure in her education as well from disruptive travelling back and forth to the Lebanon. She said her life had been emotionally damaged as well because she lived in Australia but could not have the presence of her mother (who she loved deeply and was close to) in her daily life. She woke up crying and went to sleep in tears such was her sadness at the lack of her mother in her and her children’s life. She begged the Tribunal to allow her mother to return to Australia.

17. [The sponsoring partner] asked the Tribunal to have some ‘compassion’ for his family. His wife had carried a present for a friend not knowing it contained drugs. If he had known about the drugs, he would never have become involved with her. She had been prevented from visiting Australia for 35 years. He had travelled back and forth to the Lebanon and had stayed 5 years with her in his last stay. However, he had become seriously ill in the Lebanon. He had a subsequent botched operation there which nearly cost him his life. Getting medication was also now very difficult in the Lebanon – he informed.

18. The Tribunal observed that he was very recently the subject of medical attention (in an Australian hospital). There was a diagnosis of sepsis and other serious health issues. The sponsor said he was [Age] years old with poor health. His wider family were too enmeshed with their own family responsibilities to attend properly to his needs - such as showering. He had fallen in the bath already – he informed.

19. The Tribunal suggested that, with 5 children, surely, [the review applicant] could be cared for adequately by his family.

20. He indicated in response that he lived with his daughter, but she had her own family to look after. He was not agile. He would go with his daughter to the supermarket occasionally. He would just sit down on a chair and watch the world go by - just to get out of the house. Otherwise, he would stay at home watching television. He begged the Tribunal to allow him to get the care only his wife could provide. He said that in the Lebanon, on one occasion, even a proven corrupt person eventually became President because he had been given clemency. He asked if there was some ‘compassionate’ avenue present which would allow for the family to be reunited with his wife.

21. The Tribunal said that there were ‘compelling and compassionate circumstances’ in the case that affected the whole family and who (it noted) were all Australian citizens. The Tribunal said it would consider the issue against the Ministerial Intervention Guidelines in view of the issues raised by the parties in the hearing.

    Findings and Reasons.

    The applicant's background and claims

22. The delegate’s decision (submitted to the Tribunal) reveals that [the applicant] is from Tripoli, Lebanon. She declared to have been previously married to [Mr D] ([DOB]) from [1975] to [1977]. This marriage ended in divorce with one child from the marriage.

23. The applicant has declared the following aliases to the Department:

    ·[Alias 1]

    ·[Alias 2]

    ·[Alias 3]

24. The applicant has previously travelled to Australia, using the name - [Alias 1]. The delegate’s decision record indicates that during her stay in Australia, the visa applicant was convicted of drug trafficking and was eventually deported [in] September 1990.

25. In the 21^st century, the applicant was subsequently refused a series of visas. These included a Subclass 679 Sponsored Family Visitor visa in March 2011, a Subclass 600 Sponsored Family Stream visa in July 2016 and a Subclass 300 Prospective Marriage visa in March 2018.

26. [The sponsor] is originally from Lebanon. The sponsor is an Australian passport holder. The sponsor declared he was married to [Ms E] ([DOB]) between [1967] and [1997]. The marriage ended in divorce with three children.

27. The applicant and sponsor (hereafter referred to as 'the parties') claim to have first met in Sydney, Australia in January 1989. The parties entered a committed de facto relationship on [date] February 1989. The sponsor informed in the hearing that they were married in a ceremony using Islamic rites.

28. The parties have five children from their relationship. Their children were born between [Year] and [Year] and all but one was born in the Lebanon. They are all Australian citizens.

29. A visa cannot be granted unless the applicant meets the relevant legal requirements which are specified in the Act and the Regulations. The Departmental decision record indicates that [Alias 1] was convicted of drug trafficking and subsequently deported under section 55 of the Act [in] September 1990.

30. From the information available to the Tribunal, the applicant has been refused a visa on character grounds. The applicant is thus (a) a person who left Australia while the subject of a deportation order under (ii) section 55, 56 or 57 of the Act - as in force on and after 19 December 1989 but before 1 September 1994. Therefore, because of this information, Special Return Criteria 5001 applies to her. The Tribunal notes that there is no provision for it to waive Special Return Criteria 5001.

31. Thus, the applicant does not meet the legal requirements found in clause 309.226 of Schedule 2 of the Regulations. It is a requirement for the grant of a Partner (Provisional) visa that the applicant satisfies Special Return Criteria 5001 (Migration Regulations 1994 Schedule 5).

32. Consequently, the Tribunal finds that a crucial criterion for the grant of a Subclass 309 - Partner (Provisional) and/or Subclass 100 - Partner visa are not met by the applicant.

33. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

34. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    Michael Cooke
    Senior Member