Armstrong (Migration) - [2024] AATA 4011

Armstrong (Migration) [2024] AATA 4011 (10 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Rachel Ruth Rivera Armstrong
REPRESENTATIVE:  Mrs Marimi Tanag (MARN: 1386887)
CASE NUMBER:  2102347
HOME AFFAIRS REFERENCE(S):          BCC2019/3257701
MEMBER:Brygyda Maiden
DATE:10 October 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·Reg 1.20J for the purposes of cl 820.221(4) of Schedule 2 to the Regulations

Statement made on 10 October 2024 at 1:51pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation – two previous sponsorships resulting in grant of visa – compelling circumstances affecting sponsor – valid marriage, length of relationship and newborn child – child’s physical health and treatment – older step-children – support agreement for child with second wife – no assessment of genuine and continuing relationship – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20J(1)(a), (2), Schedule 2 820.211(2)(a), (c), 820.221(4)
CASES
Babicci v MIMIA [2004] FCA 1645; Babicci v MIMIA [2005] FCAFC 77
Nagaki v Minister for Immigration [2016] FCCA 1070
Hneidi v MIAC 182 FCR 115

STATEMENT OF DECISION AND REASONS
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 Migration Act 1958 (Cth) (“the Act”).
The applicant applied for the visa on 28 June 2019 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The primary criteria must be satisfied by at least one applicant.
The delegate’s decision states the following: “[a]t the time you lodged your Partner visa application on 28 June 2019, Departmental records confirm that your sponsor had two previous sponsorships, which were commenced on 3 March 2005 and 2 February 2012 respectively. Both sponsorships had resulted in the grant of a Partner visa. Therefore, regulation 1.20J(1)(a) is not met.” The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.221(4) of Schedule 2 to the Regulations because the delegate was not satisfied that there were compelling reasons to waive reg 1.20J(2). The delegate made clear, that the genuineness of the parties’ relationship under regulation 820.211(2) of Schedule 2 to the Regulations was not being assessed.
The applicant has sought review of the delegate’s on 26 February 2021 and in doing so submitted a copy of the notification and decision from the Department.
The applicant appeared before the Tribunal on 10 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages. The applicant was represented in relation to the review.
Is the applicant sponsored?
At the time of application, cl 820.211 of Schedule 2 to the Regulations requires that the applicant meets one of several alternative sub criteria. One of which is cl 820.211(2)(c) which at the time of application requires the applicant be sponsored by the sponsor where that person has turned 18, or if they have not, by the sponsor’s parent or guardian who has turned 18 and is an Australian citizen, permanent resident or eligible New Zealand citizen.
In this case, at the time of application, the applicant was sponsored by her sponsor who was over 18 years of age and who is an Australian citizen. A copy of the bio pages of the sponsor’s Australian passport appear on the Department file.
At the time of decision, cl 820.221(4) of Schedule 2 to the Regulations, requires that the applicant continues to be sponsored and that the sponsorship that has been approved by the Minister is still in force.
Limitations on sponsorships: Does reg 1.20J apply to limit this sponsorship?
In this case, the sponsorship is subject to limitations contained in reg 1.20J which limits the Minister’s (or Tribunal’s on review) discretion to approve sponsorships. Regulation 1.20J sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship. Under reg 1.20J, a sponsor is limited to a total, in a lifetime, of two approved sponsorships or nominations that lead to a grant of a partner visa (or entry permit) or a visa (or entry permit) granted on the basis of the domestic violence provisions. If there has been one previous sponsorship or nomination, or if the sponsor was granted a visa or entry permit as a result of being sponsored, a period of 5 years must have passed since the date of the earlier visa application. These requirements apply unless the Minister, or the Tribunal on review, is satisfied there are compelling circumstances affecting the sponsor: reg 1.20J(2).
In this case, the decision record makes mention that Departmental records indicate that the sponsor has had two previous sponsorships that commenced in 2005 and 2012 respectively, both resulting in the grant of a partner visa. Both parties gave consistent evidence at hearing that the sponsor had sponsored two other women both whom were granted visas. He is now divorced from both of them.
The Tribunal finds that the sponsor has already had two previously approved sponsorships that led to grant of partner visas. The applicant’s visa application which was made on 28 June 2019 is the sponsor’s third sponsorship. For these reasons, the sponsorship limitation in reg 1.20J applies to the sponsor to prevent further sponsorships. Therefore, the applicant does not meet reg 1.20J(1)(a). Despite this, the Minister (or Tribunal on review), may approve the sponsorship of an applicant for a visa if satisfied that there are compelling circumstances affecting the sponsor.
Are there any compelling circumstances affecting the sponsor?
The expression ‘compelling circumstances’ is not defined in the legislation. The Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: Babicci v MIMIA [2004] FCA 1645 or are ‘so powerful that they lead the [Tribunal] to make a positive finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77.
The Explanatory Statement to SR 1996[1] discusses that:
“Compelling circumstances" may include, but are not limited by, the following situations:
·the previous spouse or interdependent partner has died;
·the previous spouse or interdependent partner has abandoned the sponsor or nominator, and there are children requiring care and support;
·the new relationship is long-standing; or
·there are dependent children of the new relationship.
Department policy appears to substantially reflect the above but also provides two general aspects that may be important. Both deal with the hardship or detriment suffered by the sponsor if the sponsorship is not approved. The first deals with the nature of that hardship or detriment and the second deals with the extent and importance of the sponsor’s ties to Australia if the sponsor felt compelled to leave Australia in order to maintain the relationship with the applicant. The Tribunal notes that although Department policy and guidelines may provide guidance they are not binding on the Tribunal. The Tribunal will make an independent assessment of the material before it with a view to making the correct or preferrable decision.[2]
Has the sponsor’s previous spouses died?
[1] See “Regulation 67 – New Division 1.4B”.
[2] See: Hneidi v MIAC 182 FCR 115 at [34]: “The learned primary judge said at [50] that the overarching principle to be gleaned from the authorities is that the Tribunal must make an independent assessment of the material before it with a view to reaching the correct or preferable decision; the authorities are clear that the weight to be placed on government policy is a matter for the Tribunal but this principle cannot be pushed past the point at which the Tribunal no longer makes an independent assessment.”
The applicant told the Tribunal that the sponsor’s previous spouses had not died. Therefore, this is not a compelling circumstance that affects the sponsor.
Has the previous spouse abandoned the sponsor?
Both parties gave consistent evidence that the sponsor’s second spouse abandoned him. She filed for the divorced. The sponsor’s evidence was that he attempted to salvage the relationship but she had not wanted to. The Tribunal does not consider this to be a compelling circumstance, but rather, a relationship breakdown.
Are there children requiring care and support?
Both parties gave consistent evidence that the sponsor and his second ex-wife have a child together. There is a child support arrangement between the sponsor and his ex-second wife (though the parties gave different evidence as to how that arrangement was working). The sponsor told the Tribunal that he had a child with his second ex-wife. His second ex-wife has a new partner. The parties had attempted to obtain custody of that child, but were unsuccessful. The sponsor’s post hearing statutory declaration dated 14 September 2024 states:
When you asked me about my previous relationship I tried to make it work for the sake of my other daughter Celeste, but her mum is already seeing someone or other men who got more money while I was away for work. She was in a hurry for a divorce, she abandoned the relationship and Celeste was stuck in the middle. I don’t want to go through that same pain again.
The Tribunal affords the sponsor’s child with his second ex-wife some weight in support of being a compelling circumstance that affects the sponsor.
Is the sponsor’s relationship with the applicant long standing?
The applicant told the Tribunal that the parties met online in 2016 and in person in March 2017. The parties married in October 2018. In support of this, a Republic of the Philippines Office of the Civil Registrar General marriage certificate on the Department file indicates that the parties have been married since 24 October 2018. The applicant told the Tribunal that she moved to Australia in 2019. Although the Tribunal has not assessed whether the parties are spouses under the Act, the sponsor’s relationship with applicant based on the marriage certificate is long standing; with the parties being married for almost six years.
Judge Jarrett in Nagaki v Minister for Immigration & Anor [2016] FCCA 1070 found at paragraph 58 that:
In my view, the tribunal was correct to approach the application on the basis that the genuineness of Ms Nagaki and Mr Reghenzani’s relationship, in and of itself, could not constitute a compelling circumstance affecting a sponsor. It was but one matter that went to make up the circumstances which the tribunal might ultimately describe as compelling. But on its own, and with nothing more, the tribunal could not have been satisfied that there were compelling circumstances affecting the sponsor of the purposes of reg.1.20J(2) of the Regulations. Were it otherwise, every applicant who demonstrated that they were a spouse for the purposes of cl.820.211(2)(a) would fall within the reg. 1.20J(2) exception.
and at 68 and 69:
Further, the submission that in ordinary circumstances, if an applicant and sponsor have been in a relationship three years or longer, as defined in reg.1.03, then the applicant is automatically granted a Partner (Residence) visa cannot be correct because the existence of a relevant relationship is not the only material criteria relevant to obtaining a Partner (Residence) visa. There are other matters that need to be met. The granting of such visa can hardly be said to be automatic.
Moreover, an applicant’s entitlement to fast-track the process of obtaining a Partner (Residence) visa does not and, in my view, cannot amount to a compelling circumstance affecting the sponsor for the purposes of reg.1.20J(2) of the Regulations. The definition of long-term partner relationship in reg.1.03 has no statutory relevance or application to whether there are compelling circumstances affecting the sponsor for the purposes of reg.1.20J(2).
Applying the reasoning in Nagaki v Minister for Immigration & Anor [2016] FCCA 1070, in this case a finding has not been made by the Department or the Tribunal that the parties are spouses for the purposes of cl 820.211(2)(a) of Schedule 2 to the Regulations. Although the Tribunal accepts that the parties have been married for a lengthy period of time which is based on the parties’ marriage certificate, this on its own does not in the Tribunal’s view amount to a compelling circumstance affecting the sponsor.
Are there dependent children of the new relationship?
The parties submitted an Australian Government Services Australia new born child declaration indicating that the parties have a daughter together who was born in June 2024 (“Kaia”) and a Queensland birth certificate. Significant medical documentation was submitted that the child was conceived by IVF. Based on the medical evidence and the birth certificate, the Tribunal is satisfied that the parties have a biological dependent child together. The applicant told the Tribunal that the parties’ daughter was born two months premature. The applicant told the Tribunal of her emergency caesarean, that her daughter did not have a heart beat on birth and had be resuscitated on two occasions. She was flown to Townsville (the sponsor told the Tribunal that this was for nearly a month) and then back to Cairns where she stayed in the special care nursery until she was full term. The sponsor told the Tribunal that Kaia needed regular check-ups for the next two years because she was premature. These checks are for her eyes and ears. Her white blood cell count is low meaning she is susceptible to flus and colds and her red blood cell count is not where it should be. She will be prone to sickness for a while which is normal for premature babies, and the sponsor takes time of work. The applicant told the Tribunal that Kaia had two huge haemangiomas which they need to monitor. One is on the top of her head and the other on the back of her ears. This is consistent with what the Tribunal saw when sighting Kaia at the hearing and photographic medical evidence submitted by the applicant. Significant medical evidence was submitted to the Tribunal in relation to Kaia.
The applicant also gave evidence that she has a child, Xyril (15) from a previous relationship that resides with the parties. Post hearing the sponsor submitted a statutory declaration dated 14 September 2024 which states the following:
…I know if visa refused [sic], Rachel, Kaia and Xyril will have to go back to the Philippines. I know I can’t look after Kaia the way how hands on Rachel is. I would be emotionally [sic] wreck and would not cope...I would like my wife and daughter Kaia and Xyril which I treat as my own to live here in Australia. Kaia being born prematurely and have issue [sic] health wise …
The Tribunal considers that the sponsor having a very new biological baby with the applicant and Kaia’s ongoing health issues as a result of being born prematurely is a compelling circumstance that affects the sponsor. The reasons for this are:
a.due to Kaia being conceived by IVF which the Tribunal accepts would have had an emotional impact on the parties including the sponsor;
b.Kaia’s young age and her health vulnerabilities; and
c.due to the Tribunal considering it likely that if the visa were not granted that Kaia would return to the Philippines with her mother, the applicant.
This would then be the second child that the sponsor would no longer have a living arrangement with which the Tribunal accepts would have a significant emotional toll on the sponsor (the first child being Celeste with his second ex-wife). The Tribunal also accepts that separating a child from their parent is an undesirable and compelling situation which in this case affects the sponsor.
Although the Tribunal accepts that the sponsor may have a relationship with his step daughter Xyril and there would be an impact on him if she were to be separated from him as a result of the applicant’s visa not being granted, the Tribunal does not on the evidence before it consider this to be a compelling circumstance that affects the sponsor. The reason for this is that there has been time for a bond with Xyril to be established, Xyril is well into her teens, she is not the sponsor’s biological child and a relationship can be maintained between the sponsor and Xyril if she went back to the Philippines despite the distance with technology that is currently available. There is also the possibility that in the future Xyril may be able to visit the sponsor in Australia unaccompanied due to her age, which would mean that he would not have to leave his business (discussed below).
Hardship or detriment suffered by the sponsor if the sponsorship was not approved?
The parties gave evidence and submitted documentation indicating that they run a tiling business together. The applicant told the Tribunal that she used to clean up after the sponsor does the jobs. She would do the invoicing, e-mail communications and phone customers. She still currently assists him (despite having a new baby), but no longer goes to site but does do the administrative work as she is more technologically savvy than he is. The sponsor’s statutory declaration dated 14 September 2024 states the following:
I don’t think I can also run the business without my wife, aside from being my everything she take a lot of pressure of [sic] me doing invoicing, emailing and contacting customers when I don’t have time for when I am busy on site. She takes care of the household and life will be empty without them and I won’t handle it.
…
Living in the Philippines is not an option as I can’t afford [sic]. My work here is my bread and butter.
The Tribunal accepts that there may be some hardship in relation to the parties’ tiling business if the applicant’s visa was not granted, however it is possible that the sponsor could engage an employee to provide him with administrative assistance. For this reason, the Tribunal does not consider this to be a compelling reason. The Tribunal does accept that given the sponsor is in his mid-sixties, returning to the Philippines with the applicant may well cause employment difficulties for him. Given his age, the Tribunal considers this to be compelling circumstance affecting the sponsor.
CONCLUSION
When all the evidence is considered cumulatively, the Tribunal accepts that there are compelling circumstances (the major one being the parties’ biological child Kaia), that may affect the sponsor. Because the Tribunal is satisfied that there are compelling circumstances affecting the sponsor, the Tribunal approves the sponsorship of the applicant in accordance with reg 1.20J(2). Therefore, the applicant meets the requirements of cl 820.221(4). Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.
DECISION
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·Reg 1.20J for the purposes of cl 820.221(4) of Schedule 2 to the Regulations.
Brygyda Maiden
Member