2305121 (Migration)
[2025] ARTA 455
•25 February 2025
2305121 (MIGRATION) [2025] ARTA 455 (25 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2305121
Tribunal:General Member G Bartley
Place:Sydney
Date: 25 February 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 820 visa:
·cl.820.211(2) of Schedule 2 to the Regulations; and
·cl.820.221(3) of Schedule 2 to the Regulations.
Statement made on 25 February 2025 at 10:31am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – genuine and continuing relationship before relationship ceased – joint bank account – social and government recognition of the relationship – non-judicially determined claim of family violence – threats of deportation – mental health issues – compelling reasons – best interests of an Australian citizen child – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; Schedule 3, Criteria 3001; rr 1.15, 1.21-1.25CASES
Babicci v MIMIA (2005) 141 FCR 285
He v MIBP [2017] FCAFC 206
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.
ISSUES
The first issue in this review is whether the applicant, [named] (also known as [an alias]), was in a genuine and continuing spouse relationship with her sponsor, [named], as defined in s 5F of the Migration Act 1958 (Cth) (the Act) prior to the relationship ceasing. The second issue is whether the applicant has experienced family violence committed by the sponsor. The third issue is whether the applicant meets the requirements in Schedule 3 of the Migration Regulations 1994 (Cth) (the Regulations), or 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) visa under s 65 of the Act.
The applicant applied for the visa on 19 August 2020 on the basis of her relationship with the sponsor, [named]. At that time, Class UK contained Subclass 820. 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. Relevantly to this matter, the primary criteria include cl.820.211 and cl.820.221 which require that at the time of application and decision, the applicant is the spouse or de facto partner of the sponsor, unless the relationship has ceased, and certain circumstances exist. These include that the applicant, or a member of the family unit, has experienced family violence committed by the sponsor. The applicant claims this occurred in this case.
The applicant advised the Department on 24 July 2022 that the relationship with the sponsor had broken down and she had a new partner; [Partner A]. On 1 August 2022, the applicant advised the Department that the relationship with [the sponsor] had broken down on 1 December 2021 due to irreconcilable differences. The applicant said she was pregnant with [Partner A’s] child and wished to change sponsor.
The Department wrote to the applicant on 12 August 2022, inviting her to provide further information about the status of her relationship with [the sponsor].
The applicant submitted a withdrawal of visa application form on 3 September 2022. She claimed that the relationship with [the sponsor] had broken down due to his extreme jealousy.
[Partner A] submitted an electronic sponsorship form to the Department on 22 September 2022 and claimed that he began a de facto relationship with the applicant on 31 July 2021.
On 3 November 2022, the applicant advised the Department that she had been the victim of family violence perpetrated by [the sponsor]. The applicant retracted her withdrawal of the visa application the following day.
The delegate refused to grant the visa on 27 March 2023 on the basis that the applicant did not meet cl.820.211(2)(a) of the Regulations. The delegate was not satisfied that the applicant was the spouse of [the sponsor], as defined in s 5F of the Act, at the time of application. Consequently, the delegate did not consider the family violence claims.
On 12 April 2023, the applicant applied to the AAT for review of the delegate’s decision. She subsequently requested that the application be granted priority. A decision was made by a Tribunal registry officer on 4 December 2024 that the review should be prioritised.
The applicant appeared before the Tribunal by video conference from Western Australia on 29 January 2025 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review is set aside, and the matter be remitted for reconsideration
BACKGROUND
The applicant is [an age]-year-old citizen of the Philippines. She has declared three previous relationships and has one child from each of those relationships, currently aged [respective ages] years. Those children live in the Philippines and are not included in the current application. The applicant’s parents and [number] of her [siblings] live in the Philippines. Her other siblings live in [specified countries]. The applicant is self-employed at a [business 1] and receives a payment (special benefit) from Centrelink.
The sponsor, [named], is [an age]-year-old Australian citizen by birth. He has not declared any previous marriages or de facto relationships. The sponsor’s parents and [specified siblings] are deceased. One surviving brother lives in Australia. The sponsor is retired and receives a Centrelink aged pension.
The applicant and the sponsor (the parties) stated in the application that they met on an online dating site in 2016. They first met in person in the Philippines on 24 January 2017. The sponsor stayed with the applicant in her family home for a few days and returned to Australia in February 2017. The sponsor travelled to the Philippines to visit the applicant [in] May 2019 and stayed for around two weeks. The applicant arrived in Australia [in] June 2019 after being granted a Visitor visa (Subclass 600) and has not departed since that date. The parties were married at [Town 1] [in] April 2020.
CONSIDERATION OF CLAIMS AND EVIDENCE
Prior to and following the hearing, the applicant submitted additional documents to support the application, including but not limited to the following: various medical, domestic violence and victim counselling reports regarding the applicant, a copy of the applicant’s daughter’s birth certificate, a Provisional and a Final Apprehended Domestic Violence Order (ADVO) protecting the applicant from [Partner A], dated [in] September and [December] 2022, joint bank account statements in the parties’ names, a receipt for a car, and photographs.
In making my decision, I have had regard to the Department and Tribunal files and the oral evidence at the hearing.
The applicant gave her oral evidence in a direct and straightforward manner. She responded to the Tribunal’s questions without delay or obfuscation. The applicant’s oral evidence was generally consistent with the Department’s movement records and the documents submitted to support the application, including the reports regarding her claims of family violence. While the evidence regarding the circumstances in which the parties first met in the Philippines was not entirely coherent and consistent, I am satisfied that this is due to the passage of time. I have placed weight on the applicant’s oral evidence as I consider it to be reliable.
There is a certificate issued under s 376 of the Act on the Department file which relates to information provided to the Department that the parties’ relationship was contrived for migration purposes. The certificate is signed, and I am satisfied that it is valid. The information provided to the Department by third parties, some of whom chose to remain anonymous, is contrary to the other evidence before me and some of details included are factually incorrect. I have not placed any weight on that information because I do not consider it to be reliable.
Was there a spouse relationship?
Clause 820.211(2)(a) requires that at the time the visa application was made, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case, the applicant claims that at the time of application, on 19 August 2020, until the cessation of the relationship, on 1 December 2021, she was the spouse of the sponsor, who is an Australian citizen.
‘Spouse’ is defined in s 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: s 5F(2)(a)-(d). 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 parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Were the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided a copy of the parties’ marriage certificate to the Department at the time of application. The applicant confirmed during the hearing that she was not legally married to the fathers of her three children living in the Philippines. There is no evidence before me to cast doubt on the validity of the parties’ marriage at [Town 1] [in] April 2020, and it was not disputed by the delegate. Consequently, in the absence of any evidence to the contrary, I find that the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).
Were the other requirements for a spouse relationship met?
The financial aspects of the relationship
The applicant gave compelling evidence regarding the financial aspects of the parties’ relationship. I accept that the applicant did not have work rights when the parties began cohabiting in June 2019. Although the applicant borrowed some money from her brother to assist with living expenses, her financial contribution to the parties’ household was limited until she was granted work rights. The applicant began contributing to rent and household bills once she obtained work rights and found a job at a local [business 1] in April 2021. The sponsor received an aged pension from Centrelink and worked one day per week cleaning buses.
The sponsor submitted a statutory declaration to the Department, dated 21 November 2020, and requested that the applicant be granted work rights. He said:
“…as a sponsor I am principally responsible for me and my wife’s day to day expenses including our housing accommodation, food, utilities, clothing, health care and others…My wife, [named], has 3 young children from her previous relationships aged [respective ages] who live in the Philippines…as my wife has no working right and income in Australia, I provide the support for all of the needs of the three children as there is no real child support arrangements enforceable in their country, and the other father has passed away…That my aged pension reduced dramatically as a result of my getting married, and without my wife working it will be very hard for both of us…My wife is now seeking your approval to work, and I support such application so that we will not be suffering financial hardship as a result of her lack of work right…”
I accept that the applicant relied upon the sponsor to meet her essential needs before she began working, including for accommodation and food. The parties opened a joint bank account after their marriage, as evidenced by the statements provided. I am satisfied on the basis of the applicant’s oral evidence that both parties used the account to purchase groceries and other day-to-day necessities.
The applicant demonstrated a reasonable understanding of the sponsor’s financial circumstances at the hearing, including his sources of income. I accept that the sponsor transferred approximately $10,000 to the applicant before she arrived in Australia to assist her with general living expenses and to build a modest single-room building on land that she owns next door to her parents’ home. The applicant’s three children are currently living in that property.
I find that the parties did not have any joint assets or liabilities or owe legal obligations to one another. The lease for the parties’ community housing was in the sponsor’s sole name because he had lived there for many years prior to the applicant’s arrival in Australia in June 2019.
I am satisfied that the parties pooled their financial resources and shared day-to-day household expenses once the applicant obtained work rights and found employment. As demonstrated by the sponsor’s statutory declaration to the Department outlined above, the applicant was initially dependent upon the sponsor to pay for the necessities of life.
The financial aspects of the relationship support a finding of a genuine and continuing spouse relationship at the time of application.
The nature of the household
The applicant submitted correspondence sent to a mutual address to both the Department and the Tribunal, including a Transport NSW photo card, bank statements and various receipts.
I am satisfied that the applicant moved into the sponsor’s community housing apartment on the Central Coast of NSW on the day that she arrived in Australia, [in] June 2019, and that the parties lived together at that property until the applicant left to live with [Partner A] in December 2021. As discussed below, there is conflicting evidence about when the applicant left the parties’ home. There is a report from NSW Police, dated [in] September 2022, which states that the applicant had been living with [Partner A] since June 2021. It appears that this is what the applicant reported to NSW Police following a domestic violence incident involving [Partner A]. However, I accept the applicant’s oral evidence that she reconciled with the sponsor and moved back into his home in August 2021, before leaving for the second and final time in December 2021. The applicant’s evidence about that matter has been consistent over time and is corroborated by documents submitted to support the family violence claim.
I am satisfied on the basis of the text message from [Agency 1] that the sponsor advised the community housing provider that the applicant was living in the property with him. Statutory declarations by witnesses support the applicant’s account of the parties’ household living arrangements.
The applicant gave persuasive oral evidence that the sponsor cooked most of the meals during the period the parties lived together, and she generally did the cleaning. They shared the laundry tasks and did the grocery shopping together. The applicant did not have her driver’s licence when she started working at a [business 1] in April 2021, so relied upon the sponsor to drive her to and from work. It is uncontested that the parties did not have any joint responsibility for the care and support of children.
The establishment of a joint household for two and a half years from June 2019 until December 2021 provides weight in support of a finding of a genuine and continuing spouse relationship at the time of application.
The social aspects of the relationship
There is consistent evidence that the parties were married before a small group of family and friends during the early stages of the COVID-19 pandemic. I accept that they socialised together by attending church and various community events. Photographs provided show the parties at a broad range of social occasions during the period they lived together, including eating out at restaurants with friends.
The applicant provided witness statutory declarations from two friends to the Department. The witnesses provided a reasonable amount of detail and the information provided was consistent with the other evidence before me. [Witness A] said in his statutory declaration, dated 18 August 2020, that he has known the sponsor for six years and the applicant for 14 months. [Witness A] said he and his wife have been socialising with the parties since June 2019 and that “…[t]hey have always displayed love and affection towards each other whilst in our company. I have observed [the applicant] as a sincere person, young but very caring to her husband, [the sponsor]…”
I have placed some weight on the evidence from witnesses as I consider it to be sincere.
I am satisfied that the sponsor advised Centrelink of the parties’ marriage. This is significant because the rate of his aged pension was reduced as a result. The sponsor’s statutory declaration to the Department to request that the applicant be granted work rights confirms the reduction in his fortnightly rate of pension. As noted above, the sponsor also advised [Agency 1] that the applicant was living in the home.
I am satisfied that the parties disclosed their marriage to the applicant’s work colleagues. The applicant gave persuasive oral evidence that the sponsor drove her to and from work each day once she obtained employment. He sometimes came into the [business 1] and spoke with her employer. I accept on the basis of the applicant’s oral evidence and the photographs submitted after the hearing that the applicant’s parents and children met the sponsor and spent time with him in the Philippines in 2017 and 2019. The sponsor said in the application that he spoke with the applicant’s family by video conference during the COVID-19 pandemic and he feels happy because he is accepted by her family. The applicant gave persuasive oral evidence that her parents formed a positive relationship with the sponsor and supported the relationship, despite the significant difference in the parties’ ages.
The applicant said she did not meet the sponsor’s brother because he does not have regular contact with his brother.
I find that the parties planned and undertook joint social activities during the period that they lived together, including attending church most Sundays. I am satisfied on the basis of the evidence before me that the parties held themselves out as being married to each other to their friends, relatives and more broadly in the community.
The social aspects of the relationship are consistent with a finding of genuine and continuing spouse relationship at the time of application.
The nature of the persons’ commitment to each other
I find that the parties were in a committed relationship and lived together for around two and half years from June 2019 until December 2021. They were married for 20 months before the relationship ended.
The sponsor said the following in the application:
“…I am truly committed to my wife, and I am certain that she is the same with me. We are compatible in many ways despite our age gap, complementing each other’s weaknesses. We are committed to be with each other for our life time. Firstly, we became friends, and that developed into a strong, supportive and loving relationship. Since we got married our trust in each other has flourished more than we expected.”
I am satisfied that the parties provided one another with emotional support and companionship during the period that they lived together. The witness statutory declarations corroborate the applicant’s account of the love and care the parties had for one another. For example, [Witness B] said in her statutory declaration, dated 18 August 2020, that she has known the parties for 14 months and they attend the same church. [Witness B] said:
“…I believe the relationship between [the applicant] and [the sponsor] is genuine and continuing because I saw how respectful and in love they are to each other. They seem to be very loyal and supportive to each other. When they are with each other, I can see how happy they are. [The sponsor] has been very good to [the applicant] and as their friend I am personally aware that he gives full assistance to [the applicant] especially in settling in Australia, her new country. I am also aware that [the sponsor] cares a lot about [the applicant’s] children. I was present when [the sponsor] and [the applicant] got married…”
The applicant acknowledged that there was a significant difference in the parties’ ages and said the sponsor claimed to be much younger on his online dating profile than his true age ([specified]). It was not until the applicant saw the sponsor’s passport that she became aware of his correct age. The applicant did not consider the age gap to be an issue. During the hearing the applicant spoke positively about the initial stages of the relationship. She gave oral evidence that the sponsor’s conduct towards her changed around a year after they were married, and he became increasingly jealous and controlling. The applicant said the change in the sponsor’s conduct coincided with her obtaining employment.
I accept that the parties made plans for their future life together, including for the applicant’s children to eventually join them in Australia. The sponsor was keen to return to the Philippines to spend time with the applicant’s family as he had formed a close bond with them.
I am satisfied that both the applicant and the sponsor were genuinely committed to the relationship and saw it as long-term. This provides significant weight in support of a finding of a genuine and continuing spouse relationship at the time of application.
Conclusion on spouse criteria at the time of application
After having regard to the above evidence, I am satisfied that at the time of the visa application the parties were in a genuine and continuing relationship and had a mutual commitment to a shared life as husband and wife to the exclusion of all others. I find that the parties lived together from June 2019 until December 2021, and that therefore they did not live separately and apart on a permanent basis at the time of application. I am satisfied that the requirements of s 5F(2) of the Act were met at the time the visa application was lodged.
I find that the applicant does not hold, and has never held, a Subclass 771 (Transit) visa. I am satisfied that the sponsor is an Australian citizen, as evidenced by the identity documents he submitted to the Department to support the application. The sponsor was not a prohibited sponsor at the time of application. I am satisfied on the basis of the sponsorship form included in the visa application that the applicant was sponsored by the sponsoring partner. Furthermore, both the applicant and the sponsoring partner had turned 18 at the time of application. Consequently, the requirements of cl.820.211(2)(a) and (c) are met.
Cessation of relationship
There was uncontested evidence that the parties’ relationship has ended, although there is conflicting evidence regarding the date. For the reasons outlined above, I am satisfied that the parties’ relationship ended in December 2021 when the applicant left the parties’ home for the second time and moved in with [Partner A].
I am satisfied on the basis of the evidence before me that the applicant and the sponsor were in a partner relationship and that this relationship has ceased. The issue that arises is therefore whether the applicant has experienced family violence committed by the sponsor, within the meaning of the Regulations.
Has a claim of family violence been made under the Regulations?
Under reg 1.23 of the Regulations, a person is taken to have experienced or committed family violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim of family violence, and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has experienced relevant family violence or an opinion of an independent expert has been given that the alleged victim has experienced relevant family violence. Relevant family violence is defined in reg 1.21. These regulations, as relevant to this decision, are extracted in the attachment to this decision. The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: reg 1.23(3), (5), (7), (12), (14).
In the present case, the applicant is seeking to establish family violence on the basis of a non-judicially determined claim of family violence.
Under reg 1.23, a visa application is taken to include a non-judicially determined claim of family violence where either a joint undertaking to a court has been made by the alleged victim and alleged perpetrator or evidence in accordance with reg 1.24 is provided.
The applicant is seeking to rely on evidence referred to in reg 1.24 - namely, a statutory declaration under reg 1.25 and evidence of a type and number specified by the Minister for these purposes (see LIN 23/026).
A statutory declaration under reg 1.25 must be made by the spouse or partner of the alleged perpetrator. If the alleged victim is the spouse or partner, the statutory declaration must set out the allegation of family violence, name the person alleged to have committed the relevant family violence and if the conduct was not directed at the spouse or partner, name the person to whom it is directed and their relationship with the deponent: reg 1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: reg 1.25(3).
The applicant submitted to a statutory declaration to support her family violence claim, dated 3 November 2022. The applicant states that the sponsor subjected her to public shaming, stalking, insults, financial control and threats to deport her. In August 2021, the sponsor locked the applicant out of their home for around three hours on a cold winter’s afternoon and would not let her come back inside. The applicant said the sponsor’s conduct caused her to feel stressed, sick, miserable and helpless.
The applicant submitted a medical report by [Doctor A], general practitioner, dated 21 October 2022. [Doctor A] said the applicant has been under her care since December 2021 with symptoms of anxiety and depression secondary to relationship issues and domestic violence. [Doctor A] said the applicant is current seeking support from the domestic violence unit and is waiting to have therapy. [Doctor A] said the applicant was referred to a psychologist in December 2021 under a Mental Health Plan but was unable to afford appointments.
Following the hearing, the applicant submitted an updated report by [Case Worker A], case worker and intake support officer at the [Agency 1], dated 30 January 2025. [Case Worker A] said the applicant was in a relationship with the sponsor for about a year and continues to be legally married to him. The applicant was referred to [Agency 1’s] [service] on 22 September 2022. She left the relationship with the sponsor to keep herself safe. During phone calls with [Case Worker A], the applicant disclosed experiences of verbal abuse, emotional abuse, financial control, stalking and intimidation. [Case Worker A] said the applicant has “…experienced depression and anxiety as a result of trauma…”
The applicant submitted various other documents to support her family violence claim, including a report by [Mr A], accredited victims of crime counsellor and registered nurse, dated 21 January 2026. (I am satisfied that the date of the report is a typographical error and should read 2025.) [Mr A] said the applicant began counselling with him in October 2024 to address the impact of her experiences as a victim of domestic and intimate partner violence. [Mr A] said the applicant described her relationship with the sponsor as abusive, controlling and volatile. According to the applicant, the sponsor demeaned her in both public and private settings, making statements that belittled and humiliated her. For example, the sponsor reportedly told others that the applicant was “available” to have relationships with younger men, which made the applicant feel embarrassed and devalued. The sponsor engaged in coercive control by managing all household finances, denying her autonomy, and alleged locked her out of their marital home, preventing her from accessing her living space. The applicant also reported that the sponsor frequently threatened to report to immigration authorities, using her visa status as a means of control. These threats caused significant anxiety and fear, leaving the applicant feeling trapped and unable to assert her independence. Additionally, the applicant described the sponsor as engaging in stalking behaviour and shaming her in the presence of others. [Mr A] said despite the applicant’s attempts to leave the relationship, the applicant found herself returning due to feelings of helplessness and a lack of options. Eventually, the applicant was able to exit the relationship permanently, The applicant entered another relationship [with [Partner A]], which initially seemed supportive but unfortunately became abusive in multiple ways. [Mr A] said these compounded experiences have had a profound impact on the applicant’s mental health. The applicant has reported experiencing severe anxiety, emotional dysregulation, flashbacks, rumination, and a marked loss of self-esteem and confidence. [Mr A] said the purpose of his report was to validate the applicant’s disclosures.
I find that the statutory declaration made by the applicant meets the requirements of the regulations. The applicant claims that she was the victim of family violence committed by the sponsor and she sets of the allegations of family violence. Furthermore, the report by [Doctor A] identifies the applicant as the alleged victim and details the injuries or treatment of the applicant that may be consistent with domestic violence. Although [Doctor A] did not specifically identify the sponsor as the perpetrator, this is not a requirement of the Instrument. The dates that [Doctor A] referred to are consistent with the period that the parties lived together, and that the applicant left the relationship. I am satisfied that [Doctor A] is referring to the impact of the family violence perpetrated by the sponsor rather than [Partner A], which occurred later. Finally, the report by [Case Worker A], a domestic violence support service provider, states that the applicant has made a claim of family violence and identifies the sponsor as the alleged perpetrator. [Case Worker A] states that in her professional opinion the claims made by the applicant are consistent with her having been the subject of family violence. Both [Doctor A’s] and [Case Worker A’s] reports are on their professional letterheads and contain the required information, including their signatures. The reports by [Doctor A] and [Case Worker A] are two types of evidence specified in LIN 23/026.
I am satisfied that the evidence presented meets the requirements of reg 1.24. As such, a non-judicially determined claim of family violence has been made under reg 1.23.
Has the applicant experienced family violence?
I have taken into account the applicant’s oral evidence at the hearing as well as the supporting documents submitted to both the Department and the Tribunal. The applicant gave a consistent account of the sponsor’s conduct during the period that the parties lived together from June 2019 until December 2021. She told me that the sponsor was initially very kind and loving but his conduct changed around a year after they were married. The applicant said the sponsor became increasingly jealous and controlling. He humiliated her in front of others, threatened to withdraw his sponsorship and on one occasion locked her out of the parties’ home.
I have taken into account the overall consistency of the applicant’s claims and the supporting documents provided. I am satisfied that the sponsor subjected the applicant to a range of behaviours, including threats, emotional abuse and controlling behaviours. The applicant left the parties’ home for a few weeks in July 2021 due to the sponsor’s abusive conduct towards her. They reconciled and she returned to the home because the applicant was genuinely committed to the relationship and wanted to make the marriage work. The applicant left the parties’ home on 1 December 2021 for the second and final time because the sponsor’s controlling and abusive behaviours continued. I accept that the applicant genuinely feared for her safety and wellbeing when she left the parties’ home in December 2021.
I am mindful that the applicant went to live with [Partner A] and gave birth to his child in [specified year]. That relationship ended after [Partner A] was charged with assaulting the applicant. According to court and police documents submitted to the Tribunal, the assault including [Partner A] allegedly flipping a coffee table, damaging a door and punching the applicant three times in the head. A Final ADVO was granted to protect the applicant from [Partner A] for a period of two years, ending [in] December 2024. I accept that when the relationship between the applicant and [Partner A] broke down, the applicant returned to live with the sponsor because she had a child and limited options. The applicant and the sponsor have resumed their friendship and maintain some contact with one another. The applicant gave oral evidence that she remains legally married to the sponsor and is regarded as his next-of-kin during periods that he is hospitalised. The parties have maintained their joint bank account despite the breakdown of the relationship. They rely upon one another at times of crisis, although they now live in different states. I do not consider that the parties’ continuing friendship and interdependence undermines the applicant’s claims about the sponsor’s abusive conduct during the relationship or the impact upon her.
Having considered all of the evidence before me, I am satisfied, for the purposes of reg 1.23, that the applicant has experienced family violence committed by the sponsor that occurred whilst the parties were in the relationship. As such, the applicant is taken to have experienced family violence in the relevant sense: reg 1.22.
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 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 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 last substantive visa ceased on 16 September 2019, and she lodged the Partner visa application on 19 August 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 16 September 2019.
As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.
Compelling reasons
As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is 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.
The applicant provided submissions to the Department to request waiver of Schedule 3, including the following:
·The parties first met in 2017 in the Philippines and became friends. They formed a relationship in May 2019 during the sponsor’s trip to the Philippines.
·After the applicant arrived in Australia, the parties’ relationship deepened.
·The applicant decided that studying in Australia was an attractive option for her.
·When the COVID-19 pandemic struck, the applicant became concerned about the parties’ health, especially the sponsor’s due to his age. The applicant was worried that the sponsor might not be able to visit her in the Philippines for an extended period, resulting in a lengthy separation.
·The sponsor may decide to travel to the Philippines to be with her, potentially putting his health at risk.
·The applicant needs to be with the sponsor during these uncertain times due to the COVID-19 pandemic.
The applicant’s circumstances have changed substantially since she made those submissions to the Department. The parties’ relationship ceased in December 2021 and the applicant gave birth to [Partner A’s] child in [specified year]. The copy of the child’s birth certificate provided to the Tribunal shows that the applicant is the mother and [Partner A] is the father. [Partner A] was born in Australia, and I accept that he is an Australian citizen. The applicant confirmed during the hearing that [Partner A] is paying child support for their daughter and that a DNA confirmed that he is the father.
I note that the applicant’s Visitor visa ceased in September 2019, which was well before COVID-19 was identified as a potential global pandemic. Nonetheless, the applicant was granted Bridging visas and took steps to ensure that she was not an unlawful non-citizen. While I am not persuaded that the various issues relating to the COVID-19 pandemic raised by the applicant are compelling reasons for not applying the Schedule 3 criteria, it is uncontested that the applicant’s [age]-year-old daughter is an Australian citizen. I am satisfied that it contrary to the best interests of the applicant’s daughter to be separated from her mother, who is her primary carer. Although [Partner A] is paying child support, he has minimal, if any, contact with his daughter because he lives in a different state and the relationship between [Partner A] and the applicant broke down in acrimonious and allegedly violent circumstances. A Final ADVO was granted to protect the applicant from [Partner A]. I am satisfied that the welfare of the applicant’s daughter would be put at risk if the applicant had to return to the Philippines to lodge a new visa application. There does not appear to be anyone could provide care to the applicant’s daughter while the applicant was offshore.
In the particular circumstances of this case, I am persuaded that the care and support required by the applicant’s [age]-year-old Australian citizen daughter constitutes a compelling reason for not applying the Schedule 3 criteria. Therefore, the applicant meets cl. 820.211(2)(d)(ii).
Overall assessment
I have found that the applicant satisfies the requirements of cl.820.211(2)(a), (c) and (d) of the Regulations. Consequently, I am satisfied that the applicant meets all of the requirements of cl.820.211(2) at the time of application.
As the relationship between the applicant and sponsor has ceased, and the applicant has experienced relevant family violence committed by the sponsor, the applicant meets the requirements of cl.820.221(3).
Given the findings above, the appropriate course is to set aside the decision under review and remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.
DECISION
The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 820 visa:
• cl.820.211(2) of Schedule 2 to the Regulations; and
• cl.820.221(3) of Schedule 2 to the Regulations.
Date of hearing: 29 January 2025
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).
REG 1.21
…
"non-judicially determined claim of family violence" has the meaning given by subregulations 1.23(8) and (9).
"relevant family violence" means conduct, whether actual or threatened, towards:
(a) the alleged victim; or
(b) a member of the family unit of the alleged victim; or
(c) a member of the family unit of the alleged perpetrator; or
(d) the property of the alleged victim; or
(e) the property of a member of the family unit of the alleged victim; or
(f) the property of a member of the family unit of the alleged perpetrator;
· that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.
"statutory declaration" means a statutory declaration under the Statutory Declarations Act 1959 .
"violence"includes a threat of violence.
…
REG 1.23
When is a person taken to have experienced or committed family violence?
(1) For these Regulations, this regulation explains when:
(a) a person (the alleged victim ) is taken to have experienced family violence; and
(b) another person (the alleged perpetrator ) is taken to have committed family violence in relation to the alleged victim.
Note: Schedule 2 sets out which visas may be granted on the basis of a person having experienced family violence. The criteria to be satisfied for the visa to be granted set out which persons may be taken to have experienced family violence, and how those persons are related to the spouse or de facto partner of, or the prospective spouse of, the alleged perpetrator mentioned in this regulation.
Circumstances in which family violence is experienced and committed--injunction under Family Law Act 1975
(2) The alleged victim is taken to have experienced family violence, and the alleged perpetrator is taken to have committed family violence, if, on the application of the alleged victim, a court has granted an injunction under paragraph 114(1)(a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator.
(3) For subregulation (2), the violence, or part of the violence, that led to the granting of the injunction must have occurred while the married relationship between the alleged perpetrator and the spouse of the alleged perpetrator existed.
Circumstances in which family violence is experienced and committed-court order
(4) The alleged victim is taken to have experienced family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a) a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence; and
(b) the order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter.
(5) For subregulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while:
(a) the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator; or
(b) the relationship existed between the alleged perpetrator and the prospective spouse of the alleged perpetrator.
Circumstances in which family violence is experienced and committed-conviction
(6) The alleged victim is taken to have experienced family violence, and the alleged perpetrator is taken to have committed family violence, if a court has:
(a) convicted the alleged perpetrator of an offence of violence against the alleged victim; or
(b) recorded a finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim.
(7) For subregulation (6), the violence, or part of the violence, that led to the conviction or recording of a finding of guilt must have occurred while:
(a) the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator; or
(b) the relationship existed between the alleged perpetrator and the prospective spouse of the alleged perpetrator.
Circumstances in which family violence is experienced and committed--non - judicially determined claim of family violence
(8) For these Regulations, an application for a visa is taken to include a non - judicially determined claim of family violence if:
(a) the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has experienced family violence; and
(b) the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim.
(9) For these Regulations, an application for a visa is taken to include a non - judicially determined claim of family violence if:
(a) the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has experienced family violence; and
(b) the alleged victim is:
(i) a spouse or de facto partner of, or a prospective spouse of, the alleged perpetrator; or
(ii) a dependent child of:
· (A) the alleged perpetrator; or
· (B) the spouse or de facto partner of, or the prospective spouse of, the alleged perpetrator; or
· (C) both the alleged perpetrator and the spouse or de facto partner of, or the prospective spouse of, the alleged perpetrator; or
(iii) a member of the family unit of a spouse or de facto partner of, or a prospective spouse of, the alleged perpetrator who has made a combined application for a visa with the spouse, de facto partner or prospective spouse (as the case may be); and
(c) the alleged victim or another person on the alleged victim's behalf has presented evidence in accordance with regulation 1.24 that:
(i) the alleged victim has experienced relevant family violence; and
(ii) the alleged perpetrator committed that relevant family violence.
(10) If an application for a visa includes a non - judicially determined claim of family violence:
(a) the Minister must consider whether the alleged victim has experienced relevant family violence; and
(b) if the Minister is satisfied that the alleged victim has experienced the relevant family violence, the Minister must consider the application on that basis; and
(c) if the Minister is not satisfied that the alleged victim has experienced the relevant family violence:
(i) the Minister must seek the opinion of an independent expert about whether the alleged victim has experienced the relevant family violence; and
(ii) the Minister must take an independent expert's opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have experienced family violence.
(11) The alleged victim is taken to have experienced family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a) an application for a visa includes a non - judicially determined claim of family violence; and
(b) the Minister is satisfied under paragraph (10)(b) that the alleged victim has experienced relevant family violence.
(12) For subregulation (11), the Minister must be satisfied that the relevant family violence, or part of the relevant family violence, occurred while:
(a) the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator; or
(b) the relationship existed between the alleged perpetrator and the prospective spouse of the alleged perpetrator.
(13) The alleged victim is taken to have experienced family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a) an application for a visa includes a non - judicially determined claim of family violence; and
(b) the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has experienced relevant family violence.
(14) For subregulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has experienced relevant family violence must have occurred while:
(a) the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator; or
(b) the relationship existed between the alleged perpetrator and the prospective spouse of the alleged perpetrator.
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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