Al Ali (Migration)

[2021] AATA 735

Al Ali (Migration) [2021] AATA 735 (20 January 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Khodr Al Ali

CASE NUMBER:  1806817

HOME AFFAIRS REFERENCE(S):          BCC2016/3579216

MEMBER:  David Crawshay

DATE:  20 January 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 20 January 2021 at 8:16am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Schedule 3 criteria – application lodged outside of relevant timeframe – compelling reasons for waiver – genuineness of the relationship – long-standing relationship – sponsor’ medical condition – financial impact of the applicant’s absence – mixed-faith relationship – COVID-19 pandemic – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 820.211; Schedule 3, Criterion 3001

CASES

Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

1. The applicant applied for the visa on 26 October 2016 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

1. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211(2)(d) because the applicant lodged the application for the visa while he was not the holder of a substantive visa and there were no compelling circumstances for not applying the criteria under schedule 3001. A copy of the delegate’s decision was provided to the Tribunal by the applicant as part of the review process.

1. The applicant appeared before the Tribunal on 9 November 2020 along with his representative and the sponsor (initial hearing). The initial hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages, although the Tribunal became concerned with the clarity of the interpreter’s telephone connection and the hearing was adjourned to a later date without any evidence being taken (although a s.375A non-disclosure certificate and its contents was discussed – see below).

1. The applicant reappeared on 15 December 2020 to give evidence and present arguments (resumed hearing). The Tribunal also received oral evidence from the sponsor. The resumed hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The applicant was represented in relation to the review by his registered migration agent, who attended the hearings.

1. The Tribunal exercised its discretion to hold the hearings by way of Microsoft Teams video (MS Teams). The hearings were held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold hearings by MS Teams, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearings were not to be conducted by MS Teams. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

NON-DISCLOSURE CERTIFICATE

1. As alluded to above, a s.375A non-disclosure certificate was discussed at the initial hearing with the applicant’s representative.

1. The Tribunal explained that the certificate was on two folios of the Department file. It stated that it believed the certificate to be valid, as it was properly signed and dated and the reason for not disclosing the information was a valid one in the Tribunal’s eyes. The representative agreed.

1. The Tribunal went on to give the gist of the information – that another government agency had assessed the applicant for the purposes of another criterion. The Tribunal said that it agreed with information on the certificate that stated that the folios were not relevant to the present matter. It said that it did not consider the information to be adverse information.

PRE-HEARING SUBMISSIONS

1. On 17 June 2020, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting him to provide information in writing about any compelling reasons for the Tribunal not applying the relevant Schedule 3 criteria under cl.820.211(2)(d)(ii) of the Migration Regulations.

The first submissions

1. On 30 June 2020, the applicant’s registered migration agent responded on his behalf by providing evidence and submissions (the first submissions). A useful précis of the first submissions was provided as follows:

   On the basis of the current coronavirus pandemic, the nature of the applicant’s return to Lebanon, the dependence of the sponsor on the applicant and the level of support he provides in all aspects of their relationship as well as the genuine and continued nature of their relationship, we contend that these compelling circumstances satisfy the schedule 3 criterion and that the applicant should be allowed to stay in the country whilst the partner visa application is being processed.

1. In the first submissions, the applicant said that he is unable to return to Lebanon, both as a matter of law under Australia’s Coronavirus lockdown conditions and as a practical matter due to the closure of Lebanon’s borders. As to the former, the applicant has submitted that the Australian Government’s stage 4 travel bans prevents all international travel. As such, the applicant contended that he would be “disobedient of government instructions” if he were to return to Lebanon. As to the latter, the applicant pointed out that Rafic Hariri Airport in Beirut has been closed since 18 March 2020 to all travellers, and Lebanon’s borders have also been closed. Additionally, the Australian Government has imposed a “do not travel” warning in respect of Lebanon, and the applicant has no right to enter or reside in another country other than Lebanon.

1. In a similar vein, the applicant submitted in the first submissions that due to the unpredictable nature of the Coronavirus pandemic, it is “highly likely” that the parties would be separated for a prolonged period of time and unable to visit each other while travel restrictions remain.

1. In the first submissions, the applicant spoke about the situation in Lebanon, viz the recent uprising and deteriorating economic conditions brought on by the uprising and by the Coronavirus pandemic. The applicant singled out the fact that he is from Tripoli in Northern Lebanon – a place that has been hardest hit by the economic downturn. The applicant argued that his safety would be compromised as well as his ability to secure employment. Without employment and with restricted access to money, he argued, he would be living on the bare minimum and on the brink of poverty, and he would not have the means to support the sponsor. This support, as submitted below, is needed as the sponsor relies on the applicant financially.

1. [Information redacted].

1. Finally, the applicant went into detail regarding the matters set out in r.1.15A(3) in order to show the genuineness of the parties’ relationship.

The second submissions

1. On 7 November 2020 ahead of the initial hearing, the applicant’s registered migration agent provided the Tribunal with further submissions of the same date (the second submissions).

1. The second submissions firstly centred on the role that the applicant has in supporting the sponsor to manage her [medical] condition. The second submissions stated that during periods when she suffers from the condition, she requires immediate rest and medical attention to alleviate the symptoms and that she cannot work or attend to her children. The second submissions state that the applicant takes on house and financial responsibilities during these times.

1. The second submissions made a number of claims in relation to the parties’ economic prospects if the applicant is forced to travel to Lebanon. According to the submissions, the applicant will be “unable to find employment and support himself let alone send money to the sponsor and support her from afar”. Later on in the second submissions, it was argued that the applicant would be “forced to live on the bare minimum on the brink of poverty”. Furthermore, the second submissions claim that the sponsor would need to engage in more work in Australia which would strain her medical condition. The second submissions claim that the applicant would be unable to afford to pay for another partner visa application and associated legal fees.

1. The second submissions pointed to the deteriorating healthcare situation in Lebanon, arguing that the sponsor would face difficulties in accessing and healthcare and medication she needs if she were to relocate to Lebanon. Furthermore, it was argued that she would face a “cultural barrier” as a result of choosing not to convert to Islam, and this would have a negative impact on their ability to live their lives together happily as a couple.

EVIDENCE AT (RESUMED) HEARING

1. The Tribunal began by questioning the applicant.

1. The Tribunal firstly discussed the delegate’s decision with the applicant. It discussed with him how the delegate was not satisfied there were compelling reasons for not applying the Schedule 3 criteria. It told him of the delegate’s view that he had deliberately manipulated his circumstances to give rise to compelling reasons and that the fact of him being in a genuine relationship with the sponsor was not, of itself, a compelling reason. The Tribunal explained that compelling reasons was not defined within the legislation but had been considered in case law to mean so powerful that they lead the decision-maker to make a positive finding that the regulation should not be applied. It also explained that these reasons can exist at any time.

1. The applicant was asked by the Tribunal about the sponsor’s [medical condition]. It asked him to confirm that she had suffered from this condition since [year], and he replied that she had. It put to him that the sponsor has needed to deal with the condition since then, before she had even met him and during times where she was separated from her ex-spouse and presumably only living with her children. It suggested that the sponsor would be able to handle the condition with the right support from her family if he were forced to depart Australia to apply offshore, even though it might be

difficult. The applicant said that the sponsor relies a lot on him both emotionally and physically. He said that while she has family members here, they will not be able to provide what he can provide. He said that he gives her money and that the other members of her immediate family are looking after themselves and not after the sponsor. The Tribunal put to the applicant that her family would be able to look after her and that while they may not be able to look after her in the same way as him they would still be able to look after her in a satisfactory way. The applicant replied that her family would be able to look after her for a short time but they have rents and bills and their own commitments. He said that it is their life and they have to look after themselves.

1. The applicant was asked about the sponsor’s family. He told the Tribunal that the sponsor has three children who live under the same roof – a son aged 20 and two daughters aged 25 and 26. He said that the eldest child helps with cleaning and cooking, the middle child helps less and the youngest child sits at home doing nothing. He said that he was not sure if they received support from their father, the sponsor’s ex-spouse, but said that he thought they did. He said that the eldest is currently pregnant and the middle child is a receptionist. When asked whether they support the sponsor, he replied not really because they were not working and their father was not really supporting them. He was asked whether they receive Centrelink payments, and he replied that though that the son received some but was not sure about the two daughters. He confirmed to the Tribunal that the parties and the sponsor’s children still lived in a rented address in Craigieburn. He said that the rent was around $2000-a-month.

1. The applicant was asked about the financial reliance the sponsor has on him. He said that he was working at the moment in his own tiling business and in partnership with a cousin farming Lebanese cucumbers and beans which he sells at the market. The Tribunal put to the applicant that while the sponsor might not be able to rely on his financial support while he is in Lebanon, her children might be able to be help her to support herself, potentially with the help of Centrelink payments. He replied that “we cannot change our place of residence” or go to another place. He said that one of the sponsor’s daughters is due to give birth. He said that it is true that she might have Centrelink payments but not enough to cover expenses especially with a new-born. He said that her children do not support her sufficiently. The Tribunal put to him that perhaps they need to start such support. The applicant responded that he did not know if they could support themselves. The Tribunal put to him that they could move to somewhere more modest. The applicant said that he did not think they will be able to look at another place, and that the sponsor is happy where she is. The Tribunal put to the applicant that this sounded like it was a lifestyle choice, and said to him that the parties had been on notice for a while that the applicant might be forced to travel offshore and that they should have looked at ways of adjusting for this circumstance. The applicant replied that the sponsor is used to living “on this level” and it would be hard to go back a level.

1. The Tribunal made the comment that a claim in the applicant’s first submissions of the applicant not physically being able to travel outside of Australia to Lebanon was not repeated in the applicant’s second submissions. It asked the applicant whether this meant he no longer pressed that claim given that open source documents confirmed that Rafic Hariri Airport in Beirut was open and non-citizens and non-permanent residents are able to travel out of Australia. He replied that he could not go back to Lebanon as the economic situation is deteriorating. He said that the currency is in a downturn and there is a big number of COVID-19 cases. He said that he would not be able to return and live decently or in the same way. He also pointed out that if he were to return to Lebanon he would not be able to support the sponsor with her [medical] condition when she is [stressed]. He said that he has been supporting her financially and morale-wise. The applicant said that there is no proper healthcare system in Lebanon and he would not be able to afford treatment over there. At this point, the Tribunal asked the applicant if he had any condition

that would cause him to develop severe symptoms from COVID-19, including any respiratory condition. He replied that there was not. The Tribunal put to the applicant that this was not a compelling reason as he would not suffer from COVID-19 in any major way. The applicant replied that COVID-19 was an unpredictable disease and he had heard of people between 30 and 40 years of age who became infected with the condition and died. The Tribunal put to the applicant that he could take precautions in order to lower his risk of developing the condition, and he agreed.

1. The applicant told the Tribunal that it was not guaranteed he would find a job in Lebanon, and the sponsor would not be able to support him in this situation. The Tribunal put to the applicant that he has been a tiler and a farmer and therefore has skills that are transferrable if he were to go to Lebanon. He replied that he would need land, a tractor and raw materials that would be expensive. He said that people in Lebanon do not have money to spend on tiling. He said that it is very hard for people to get a job at the moment.

1. The applicant was asked how many brothers and sisters he had in Lebanon, and he told it that he had five brothers and four sisters. He was asked why his siblings could not support him. He said that his parents are really old and his siblings are all married, have families and the money they earn would not be enough to support him. The Tribunal put to the applicant that it would be reasonable for his family to support him while he is in Lebanon. He replied that most of the time he is the one supporting his parents because they do not have a source of income.

1. The applicant raised with the Tribunal his claim that the sponsor would have difficulty seeing him in Lebanon due to the fact that she is Christian and he is Muslim. He said that interreligious marriages are not acceptable back in his village which he characterised as a conservative, reserved community. The Tribunal asked him what was stopping the sponsor coming over to, say, Beirut where there are more Christians and where it is more secular. He said that they could not live in Beirut because it is very expensive there including in terms of rent. It asked the applicant if the sponsor’s relatives are from the Mount Lebanon area and he said that they are. The Tribunal asked if the applicant might be able to visit him, if not in his village then in larger centres in Northern Lebanon or in the Mount Lebanon area. He said that life is hard in Lebanon no matter where they choose to live. He said that the currency has deteriorated, it is very hard to find a job and wages are very low while expenses are very high.

1. [Information redacted].

1. The Tribunal then questioned the sponsor.

1. The Tribunal asked the sponsor about her [medical] condition. She said that it comes and goes, and appears when she is stressed and tired. The Tribunal put to her that she had been managing her condition since [year] during times where she was not with the applicant and

during times when she was living away from him. She said that during the times of her condition she is unable to work, and the applicant stays at home to ensure she is okay and calms her down. The sponsor was asked where she works, and replied that she works at cafeterias in a major Melbourne hospital. It asked her how often she is off work because of her [condition], and she replied that she could not give an estimate but it could come every three or four months or more often. She said that she would typically take two days off when it came on. She was asked about her employment status and she confirmed that she was full- time and was able to receive sick leave. The sponsor also confirmed that she had [another medical condition].

1. The sponsor was asked about her family and she replied in broadly similar terms to the applicant. She said that her son is looking for work, one of her daughters was pregnant and her other daughter worked as a receptionist for a plumber. She was asked where she lived and replied that they lived in the Craigieburn address which was a big house comprising five bedrooms which had enough space for all of them. She was asked how her children support her and she replied that they did not support her that much. She said that she works hard and ensures that everything is there to make her family happy. She said that her daughters help but not much; she said that her son does not help much at all. She said that he keeps on applying for jobs but is not getting far at all so she is encouraging him to do a course. She said that her ex-spouse offers some support if the children need something.

1. The sponsor was asked how much the applicant contributes financially. She replied that he does shopping and brings home food. She said that he helps with the rent and a bit with the bills “here and there”. She said that he helps with petrol.

1. The Tribunal put to the sponsor that she appeared to be managing her conditions well. It put to her that while it might be hard work to manage while the applicant was overseas, she could do so with the support of her family and through modifying her lifestyles through, say, downsizing. She replied that the applicant has been her rock and he helps her to be strong. She said that her brothers are taking care of her mother. She said elsewhere that she could not rely on her children for support. She said that the applicant’s family in Lebanon are poor, and his brothers do not work at all. She said that the parties send money to them. The Tribunal put to her that the applicant could be supported by them in combination. She replied that their houses are small and they cannot even survive.

1. The Tribunal sought any further oral submissions from the applicant’s representative. She told the Tribunal that she would like further time to gather more evidence in order to answer some of the issues raised by the Tribunal. The Tribunal questioned whether she needed this time or whether the issues could be resolved there and then. It told her that, for example, more country information regarding the economic situation vis-à-vis the applicant’s potential employment may not be required if the Tribunal takes the view that the applicant could be supported by his family during what would be a temporary (albeit likely two year) wait for processing. The representative submitted further that the sponsor’s potentially downsizing would change her entire life and would result in hardship to an Australian citizen. The representative submitted that new legislative rules regarding allowing applicants for some offshore visas to be able to be in Australia when their visas are granted shows some flexibility in the way visas are being handled. The Tribunal pointed out that these changes have been enshrined in legislation. The representative agreed.

1. In the interests of procedural fairness, the Tribunal allowed a period of 14 days in which to provide further information to it before it would make a decision.

POST-HEARING SUBMISSIONS

1. On 30 December 2020, the Tribunal received further evidence and submissions from the applicant’s representative (post-hearing submission).

1. The post-hearing submissions provided a number of quotes from third-party sources regarding the construction and farming sectors within Lebanon – the essence of these submissions was that those sectors have contracted due to the pandemic and that the applicant would not be able to support himself while in Lebanon.

1. The post-hearing submissions also expanded upon the previous submissions in relation to the sponsor’s [medical] condition. They argued that although the sponsor had been diagnosed with the condition in [year], since the applicant’s arrival her condition has stabilised although it conceded that a finding that the applicant’s presence is the sole reason for this stabilisation is “tenuous”. The post-hearing submissions argued that “[i]t is not farfetched to believe that forced departure of the Applicant can affect the Sponsor’s condition adversely”.

1. The post-hearing submissions claimed that it would be unreasonable for the sponsor to relocate to Lebanon to reside with the applicant there given her healthcare needs. The post- hearing submissions claimed that the sponsor’s mental health has deteriorated in response to the possibility of the applicant’s visa being refused, she has been seeking medical support and a further medical report outlining her current psychological condition cannot be provided before 18 January 2021.

1. The post-hearing submissions claimed that the parties will experience hardship that is unique to their circumstances. Apart from the claimed inability for the parties to reside in Lebanon during the period of visa processing and the sponsor’s medical condition and possible deterioration, the post-hearing submissions pointed to:

   ·the support offered by the applicant around the house, including the financial support he offers to her to support her children,

·the fact that their relationship is a mixed-faith one; and

·the effects of COVID-19 on the applicant’s health.

1. In terms of the support he offers, the post-hearing submissions largely reiterated what had been argued at hearing. The post-hearing submissions stated that while the sponsor may have managed without the applicant’s presence in the past, the circumstances have “fundamentally changed” since his inclusion in her life. Regarding the fact of the parties being in a mixed-faith relationship, the post-hearing submissions argued that societal stigma might have an adverse effect on the applicant’s employment chances and may exacerbate the sponsor’s health conditions. In relation to COVID-19, the post-hearing submissions argued that the applicant faces a real and practicable chance that he will not be able to access adequate medical care in the event he contracts the illness. They argued that he would be at a higher risk of contracting COVID-19 in his proposed areas of employment.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets the schedule 3 criteria and, if not, whether those criteria should not be applied.

Does the applicant meet Schedule 3 criteria, or should those criteria be waived?

1. 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).

1. 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.

Criterion 3001

1. 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.

1. The applicant’s last substantive visa, a Vocational Education and Training Sector visa (TU-572) ceased on 11 July 2014, meaning that the relevant day was 11 July 2014. The

   application for the present visa was made on 27 October 2016, which is not within 28 days of 11 July 2014.

1. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

Compelling reasons

1. 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.

1. The expression “compelling reasons” is not defined for these purposes. However, the reasons 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: 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.

Genuineness of the relationship

1. The Tribunal acknowledges the evidence presented in support of the existence of a genuine relationship between the parties. This evidence includes a relationship certificate in respect of the parties dated 23 December 2016, declarations from third parties, financial information, photographs of the parties by themselves and with friends and with the sponsor’s family, bills and other correspondence addressed to the parties, the parties’ relationship statements and submissions from the applicant’s representative among other things. It also includes the parties’ testimony at hearing. While the Tribunal notes this evidence, it has chosen not to make a finding on whether the parties’ relationship is genuine and continuing. The Tribunal notes in this regard that a genuine relationship between the parties would not, of itself, satisfy it that compelling reasons exist for not applying the Schedule 3 criteria – not least because a necessary criterion for the grant of a partner visa under cl.820.211(2)(a) and cl.820.221(1)(a) is that the applicant be found to be the spouse of the sponsor which requires a finding that the relationship between the parties be genuine and continuing (among other things). Moreover, while there may be some level of hardship experienced by parties who are separated due to the applicant applying for a partner visa offshore, such separation is common to most if not all parties in this situation and, to be frank, it would be

unusual if there were not some level of hardship involved in parties to a genuine relationship needing to separate for a period. In this way, the fact of the separation or even the hardship involved would not, of itself, satisfy the Tribunal that compelling reasons exist for not applying the Schedule 3 criteria, and there would need to be something about that separation or hardship that made it so.

Long-standing relationship

1. Although the Tribunal has above chosen to not make a finding on the genuineness of the parties’ relationship, it is mindful that a relationship that is a long-standing relationship of two years or more may justify not applying the Schedule 3 criteria due to the hardship that results if those criteria were applied: Explanatory Statement, Migration Regulations (Amendment) 1996, No. 75, cl.10. A cursory glance over the evidence of the parties’ claimed relationship shows that they claim to have met in 2012 and to have committed to a shared life together to the exclusion of all others in May 2015. Assuming for present purposes that their relationship was and continues to be genuine, the Tribunal finds that the parties had most likely been in such a relationship for a period of just under one-and-a-half years in October 2016 when the visa was applied for. With the passage of time between the date of application and now, the parties’ relationship has continued for over five years. Notwithstanding that the Tribunal accepts for present purposes that the parties’ relationship is a long-standing one, it is not satisfied that this fact alone amounts to compelling reasons for not applying the Schedule 3 criteria. Other incidents of the separation and hardship, either individually or cumulatively, must cause the Tribunal to be satisfied that those compelling reasons exist. These are explored below.

The sponsor’s medical conditions

1. Evidence was provided in both sets of pre-hearing submissions, at hearing and in the post- hearing submissions in relation to the sponsor’s medical conditions, including medical reports. Based on this evidence, the Tribunal accepts that she has been living with [a serious medical condition], since at least [year]. It accepts that she is currently managing the condition with the help of medication. While the Tribunal accepts that the applicant may also assist her in managing this condition, it is not satisfied that the applicant’s absence for a temporary period would result in physical hardship for the sponsor. Specifically, the Tribunal notes that the sponsor has been living with the condition since [year] – including a significant amount of time where she was living with only her children. There is no evidence to suggest that she was not able to manage her [medical] condition in an adequate manner during this time, including before when she met the applicant and during times when they claim to have known each other but were living separately. Her continued employment in a full-time role and her ability to raise three children during their teenage years and into young adulthood demonstrates to the Tribunal her strength in dealing with life’s events including her [medical] condition. The Tribunal gives this aspect substantial weight in its consideration. The Tribunal believes it is reasonable to assume that she would deal with a setback such as the applicant’s returning to Lebanon for a temporary period of time in a similar way. It also finds that she would be able to be cared for by her family during any time of separation in a similar way to when the parties lived separately.

1. In a related manner, while the Tribunal accepts that the sponsor might not be able to engage in work for two-days-at-a-time when the condition comes on (which, it was told, is typically every three-to-four months but sometimes more often), it notes that she is able to access sick leave during these periods. It reasonably considers that she would not be at a financial disadvantage owing to time off dealing with the condition given the claimed frequency of the onset of the condition’s symptoms.

1. It was argued in the post-hearing submissions that it would be unreasonable to expect the sponsor to relocate to Lebanon to be with the applicant in light of the limited access to medical treatment she would experience there. This argument was said to be in response to the Tribunal’s suggestion that she live with the applicant there during the visa processing stage, although it does not recall making this suggestion but rather it believes it put to the applicant that the sponsor could visit him. In any case, the Tribunal accepts that the level of medical care the sponsor would receive in Lebanon might be less than what she currently receives in Australia. In that regard, while it might be unreasonable for her to reside with the applicant in Lebanon for an extended period of time, this does not preclude her from visiting him for a limited time (if allowed to do so) or choosing to remain in Australia for the entirety of the visa processing.

1. It was also argued in those post-hearing submissions that the sponsor has suffered a deterioration in her mental health as a result of being confronted with the real possibility of the applicant’s visa being refused and she had sought help. The applicant’s representative stated that she was awaiting a medical report outlining the sponsor’s current psychological condition and this would not be received before 18 January 2021. The parties have otherwise provided very little if any evidence in relation to this claim. This is despite the Tribunal being provided medical reports from as recently as November 2020 that detail no mental or psychological conditions on the part of the sponsor. As at the date of this decision, after 18 January 2021, it has not received any further evidence. In light of the lack of evidence to this point in relation to the claim, it does not intend to allow more time for it to be collected.

1. Lastly, the sponsor told the Tribunal at hearing that she also had [another medical condition], although there was no indication from the sponsor that these were malignant or otherwise a cause for concern.

1. The Tribunal is not satisfied that there are compelling reasons related to the sponsor’s medical conditions.

The financial impact of the applicant’s absence

1. At the hearing, the Tribunal heard from the parties that the applicant helps to support the sponsor financially. It acknowledges the sponsor’s testimony that the applicant does shopping and brings home food, helps with the rent, with the bills “here and there” and with petrol. It also notes that the applicant claims to have been engaged as a tiler in his own business and that he farms vegetables with his cousin for sale. However, there is little other evidence to substantiate the claim of the applicant’s financial support or the extent of such support. Bank statements have been submitted; however, these are only for the parties’ transaction account and, apart from a recent three-month period, are for periods before January 2020. They therefore only reflect one part of their finances and are also by-and- large not current. This is not to say that the Tribunal does not accept that the applicant provides financial support – it accepts that he does. However, it is not satisfied based on the limited evidence before it that this support is such that its lessening or even its complete withdrawal would lead to significant hardship for the sponsor giving rise to compelling reasons.

1. Even if the Tribunal is wrong about this, it is not satisfied that the sponsor would be unable to adjust her lifestyle or call on support from other sources in response to the changed financial circumstances that would ensue from the applicant having to return to Lebanon. The Tribunal has considered the reasons claimed as to why the sponsor would be unable to downsize to a cheaper residence, being that the sponsor is happy where she is, she is used to living “on this level” and it would be hard for her to go back a level. However, it believes that these do not adequately address the Tribunal’s question but rather reveal an

unwillingness to countenance what would be reasonable measures to alleviate any financial hardship that may be experienced by the sponsor. Secondly, the Tribunal is not satisfied that the sponsor’s children would be unwilling or unable to support her. It accepts that her eldest daughter will be taken up with child-rearing duties for the foreseeable future; however, there has been no evidence beyond what has been claimed by the parties and the applicant’s representative that her other two children would be unable to provide financial support for what is a temporary period – in the case of the sponsor’s other daughter, this might be through her salary and for the sponsor’s son, through any welfare payments he currently receives or salary he may receive in any future job he works.

1. In a related fashion, the Tribunal has considered whether there are compelling reasons flowing from the applicant’s claimed inability to support himself in Lebanon during the period of the visa processing. In this regard, the Tribunal notes evidence from the parties and the applicant’s representative that the applicant would find it hard to find a job in his chosen professions of tiling and farming in Lebanon and would not be able to be supported by his family there. This evidence includes extensive country information from his representative about the downturn in the economy in general and in the building and farming industries specifically. While it may be the case that the economy has suffered, the Tribunal is not satisfied based on this evidence alone that the applicant could not pick up work in another sector given his skills across industries. Furthermore, and alternatively, while the parties and the applicant’s representative told the Tribunal that the applicant could not count on the support of his family, there is no other evidence to substantiate this claim and given that his family currently comprises his parents and a large number of brothers and sisters, it is not satisfied that they would be unable between themselves to support him in terms of accommodation, food and other expenses for what would be a temporary period of time.

1. The Tribunal is not satisfied that reasons related to the financial impact of the applicant’s absence are compelling.

The parties’ mixed-faith relationship

1. The Tribunal has considered the fact of the parties being in a mixed-faith relationship. [Information redacted]. The Tribunal accepts that the parties are of different faiths – the applicant, Islam, and the sponsor, Christianity. It accepts that a certain stigma may attach to such a relationship in Lebanon, more at the community level rather than at the state level and probably higher in certain areas than in others. However, it is difficult to see how this stigma, characterised by the applicant’s representative as leading to “low-level discrimination”, can be seen as a compelling reason. The parties are not married but are rather in a de-facto relationship. There has been no reason advanced as to why the applicant would need to reveal his relationship to anyone other than his family (who already know) and certainly not to a prospective employer whom he claims would discriminate against him. If the sponsor were to visit the applicant in Lebanon, the Tribunal is still of the opinion that the parties would be able to see each other in a location other than the applicant’s village if that meant their relationship was not made public. If, as appears to be contemplated in the post-hearing submissions, the parties did wish to live there on a more long-term basis and not just see each other for a visit or visits, then the Tribunal is still not satisfied that the discrimination they face would be higher than the “low-level discrimination” asserted by the applicant’s representative.

1. The Tribunal does not consider that the parties’ mixed-faith relationship provides the basis for a finding of compelling reasons.

The COVID-19 pandemic

1. The Tribunal has considered whether the ongoing COVID-19 pandemic is a compelling reason for not applying the Schedule 3 criteria. This claim was advanced in pre-hearing submissions in terms of the ability for the applicant to travel to Lebanon given government restrictions and the closing of Rafic Hariri Airport. Additionally, it was cited at hearing as well as in the post-hearing submissions in terms of the potential implications for the applicant’s health.

1. Dealing with the claim of the applicant not being able to travel back to Lebanon given restrictions and airport closures, the Tribunal notes, as it did at hearing, that the Australian Government travel restrictions did not and do not apply to temporary visa-holders returning to their home country and that Rafic Hariri Airport had been reopened since the pre-hearing submissions were provided. In light of this, the Tribunal does not consider these reasons to be compelling reasons.

1. In terms of any implications for the applicant’s health flowing from having to return to Lebanon, the Tribunal accepts that there is a risk in sending someone to an area where COVID-19 is more prevalent. However, it finds that the applicant would likely not be at risk of developing serious symptoms from the condition if he were to contract it given his profile as a young and relatively healthy male who claims to not suffer from any condition let alone any medical condition. The Tribunal also finds that he would be able to manage the risk of contracting the condition by taking precautions, including in any job he is able to work while over there. The Tribunal is not satisfied that these reasons are compelling.

CONCLUSION

1. The Tribunal has considered the circumstances of the applicant individually and cumulatively. It acknowledges some challenging circumstances for the parties in light of the continuing COVID-19 pandemic and the uncertainty that ensues from that, although it notes that the situation waxes and wanes and it would be impossible to say with any conviction what it will look like at the time the applicant’s offshore visa application is finalised. The Tribunal finds that the applicant’s circumstances, including those related to the COVID-19 pandemic, the parties’ claim to be in a genuine relationship that is long-term, the applicant’s medical condition, the parties’ financial situations while separated, and the parties’ mixed- faith relationship, of themselves and put together do not rise to the level of being compelling reasons for not applying the schedule 3 criteria.

1. The Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).

1. There is no evidence in front of the Tribunal to show that the applicant meets any of the alternative criteria in cl.820.211.

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

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

David Crawshay Member

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.