CYTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 2940

CYTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2940 (13 August 2020)

Division:GENERAL DIVISION

File Number:2018/2753          

Re:CYTH  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

AndJQMW

OTHER PARTY

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:13 August 2020

Place:Brisbane

I affirm the decision under review.

........................................................................

Deputy President Dr P McDermott RFD

CATCHWORDS

MIGRATION – decision of delegate of Minister not to grant partner visa – character test – past criminal and general conduct – plea of guilty for two sexual assault charges – probation order – false declarations on visa applications  – failure to disclose past criminal history – failure to disclose previous cancellation and overstay of student visa – visa applicant residing overseas – visa applicant married to sponsor – whether the discretion in section 501(1) should be exercised – decision under review affirmed

DIRECTION NO 79 – primary and other considerations – character test – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – expectations of the Australian community – impact on family members

LEGISLATION

Criminal Code 1899 (Qld)

Education Services for Overseas Students Act 2000 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

CASES

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Tanielu v Minister for Immigration and Border Protection [2014] FCA 673

Yi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1485

MINISTERIAL DIRECTIONS

Minister for Immigration, Citizenship and Multicultural Affairs (Cth): Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (22 December 2014)

Minister for Immigration, Citizenship and Multicultural Affairs (Cth): Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (20 December 2018)

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

13 August 2020

INTRODUCTION

1. The applicant, CYTH (“the applicant”), in her capacity as the sponsor, applied to this Tribunal on 15 May 2018 for review of the decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the respondent”) dated 20 April 2018 made pursuant to subsection 501(1) the Migration Act 1958 (Cth) (“the Act”) to refuse to grant a “Partner (Provisional) Class UF)” visa (“Partner Visa”) to her husband, JQMW (“the husband”).

2. The Tribunal has jurisdiction to review the decision of the delegate of the respondent dated 20 April 2018 by virtue of the operation of paragraph 500(1)(b) of the Act.

3. The husband was born in India in 1978 and is an Indian citizen.

4. The husband and the applicant were married on 23 March 2015.

   BACKGROUND AND VISA HISTORY

   The Student Visa

5. The husband first arrived in Australia on 7 August 2009 on a Student (Temporary) Class TU visa (“Student Visa”)[1] which was granted by the respondent on 29 May 2009.[2]

   [1] Respondent’s Statement of Facts, Issues and Contentions, paragraph 2.

   [2] Exhibit B, Supplementary G-Documents, SG1, p. 1.

6. The husband was charged on 4 April 2010 for two crimes of sexual assault he committed on 24 March 2010 to which he pleaded guilty.[3] The husband was sentenced to two years’ probation and no conviction was recorded.[4] On 2 December 2010, in a letter to the husband from his lawyer relating to the sexual assault matters, the husband’s then lawyer advised him “It is very important that you are aware of your condition of probation… You must not leave or stay out of Queensland without the permission of your probation officer”.[5]

   [3] Respondent’s Statement of Facts, Issues and Contentions, paragraph 3; Transcript 26.11.18, pp. 4-5.

   [4] Exhibit A, G-Documents, G3, p. 82.

   [5] Exhibit A, G-Documents, G3, p. 82.

7. The husband’s Student Visa was cancelled by the respondent on 5 November 2010.[6] The Student Visa was cancelled under section 116 of the Act due to non-compliance with a condition of the Student Visa on the basis that the husband’s education provider had certified him as not achieving satisfactory course attendance.[7] The husband was advised by the respondent in its notice of decision that, from 5 November 2010, as he did not hold a visa, he was an unlawful non-citizen and could be detained or removed from Australia. The husband was advised by the respondent that he may be eligible for a grant of a further Bridging Visa and that he could seek review of the cancellation decision with the Migration Review Tribunal (“MRT”). Despite the cancellation of his Student Visa in November 2010, the husband did not immediately leave Australia and he overstayed his cancelled Student Visa for more than three years until November 2013 when he sought a Bridging Visa in anticipation of an Application for a Protection Visa.

   [6] Exhibit B, Supplementary G-Documents, SG1, p. 2; SG2.

   [7] Migration Regulations 1994 (Cth) Schedule 8—Visa Conditions: 8202; Education Services for Overseas Students Act 2000 (Cth) section 19.

   Work, finances, and overstaying his visa

8. The husband gave evidence that, in order to support himself financially while studying with a Student Visa, he worked door-knocking for an electricity company, and then subsequently for a number of charities.[8] The husband gave evidence that he worked a maximum of 20 hours per week and that he was aware of the conditions on his Student Visa which limited his ability to work more than 20 hours per week.

   [8] Transcript 26.11.18, p. 14.

9. The husband gave evidence that, following the sexual assault charges, he continued to work, however, the amount he worked did reduce. The husband remarked that he was always working enough to support himself and that he did not receive money from any friends. In giving evidence he stated that he remembered asking his parents for money “but not much… maybe once or twice”.

10. It was put to the husband that he had told a parole officer in August 2012[9] that he was unemployed and was reliant upon his savings and financial support from a friend; the husband remarked:

    Maybe it was a miscommunication with me and an officer because the help from my friends was maybe, you know, maybe if I – maybe I was – if I was not able to support myself, maybe I was living with my friends for a while, you know, like with them so I can, you know, so I don’t have to pay for my rent but it was never like a proper financial help from any of my friends that I go and ask them for money or they give me money so the money was never, ever involved. Support from my friends was always, you know, like for example, if I can’t really support myself if I’m unemployed for a while and then maybe I was, you know, I remember living with my friends for a while but never any financial help for sure.

    [9] Exhibit K, Summonsed material, pp. 28-29.

11. The husband completed his probation on 30 November 2012 without any contravention of the probation order.[10]

    [10] Exhibit A, G-Documents, G3, p. 84.

12. The husband, in giving evidence, stated that once he was out of probation he remembered working sometimes more than 20 hours, “Sometimes… like 25”. It was put to him that he increased his hours because he no longer had to comply with a visa condition as he no longer held a Student Visa; he responded: “No, I just, - I was – just to support myself properly, I had to work sometimes 25, sometimes 20 but not all the time”.

13. As to how the husband came to be employed with the charity for which he worked at that time, the husband stated that he was first employed with one charity while he had a Student Visa and continued to work for that charity after his Student Visa was cancelled. The husband, in giving evidence, stated that he also became employed by another charity when he did not hold any visa and that “they never ask me about the visa”. The husband gave evidence that he continued to work from 2010 until November 2013 when he was granted a Bridging Visa.

14. When asked whether he knew that without a valid visa he was not meant to stay in Australia, the husband answered: “Yes, I knew but I thought when I was in a probation – when I was in probation period I thought I had to be here and then after that I was just working to support myself… when I was in probation I remember knew that I had to be in Australia because I can’t leave because I’m on probation for two years”.

    The Bridging Visa

15. The husband was granted a Bridging Visa D (“Bridging Visa”) on 28 November 2013 with validity until 5 December 2013.[11]

    [11] Exhibit B, Supplementary G-Documents, SG3, p. 39.

16. In his evidence in chief, the husband agreed that that some three years and 23 days had passed between when his student visa was cancelled and when he applied for a Bridging Visa.[12] As to delay, the applicant stated:

    See, I don’t really – in that time I was – you know, there was a lot of stress and, you know, there was – there was a lot of stress that was going on too in my head because of the whole – the court matter and stuff and, you know, and I had a work and I was just working pretty much and I was – you know, and then eventually I realised that it was really – you know, because it was not really good for me when I was, you know, like living without the visa, it was – it was not really a good thing to do so I thought I should, you know, go apply for a visa, yes.

    [12] Transcript 26.11.18, p. 7.

17. In cross-examination, the applicant confirmed that he knew, between when his probation ceased and when he applied for a Bridging Visa, he was not meant to remain in Australia without a visa. As an explanation for remaining in Australia during that time, the husband stated:

    Because the condition of my place over here, like you know, my hometown, it was really bad, you know, the crime rate was really high and there was unemployment. It was really, really bad at that time and so that’s why, you know, I wanted to be – I wanted to be in Australia and work there.

18. As to why he did not apply for a visa sooner than November 2013, the husband stated:

    I didn’t know the whole procedure, like, how it works. I didn’t know the whole thing. So – but eventually I applied for a visa when I knew that it was – when I knew that it was impossible to get work or it was, you know, it was only when able – yes, when I understand that it’s not really easy to live without the visa that – then also I knew that it was really bad over here – the condition in my hometown in my country so then I thought I should apply for a visa.

19. The husband was asked how it was that in 2012 he did not know how the process worked when he had previously, in 2009, applied for a Student Visa; he stated:

    I remember how to – I knew how to apply for a visa but I knew that I can’t – I’m not able to afford a student visa and I remember, like, that I was not able to afford my studies if I would apply for a student visa.

    The Protection Visa

    The application

20. On 3 December 2013, the husband applied for a Protection (Class XA) visa (“Protection Visa”) and listed his name in response to Question 1 of the form as the only husband therein.[13] The husband was granted a Bridging Visa in connection with this application.[14]

    [13] Exhibit B, Supplementary G-Documents, SG3.

    [14] Exhibit B, Supplementary G-Documents, SG4, p. 61.

21. At Question 60, the form invites the husband to make the following declaration:[15]

    I declare that:

    ·The information I have supplied in or with this form is complete, correct and up-to-date in every detail.

    ·I have read and understand the information supplied to me.

    [15] Exhibit B, Supplementary G-Documents, SG3, p. 35.

22. The signature that appears within the signature field in response to Question 60 certainly appears to the same as the signature on the following documents purporting to be signed by the husband:

    (a)Response to “Declaration by client” appointing registered migration agent dated 1 November 2017;[16]

    (b)Personal particulars for assessment dated 26 June 2015;[17]

    (c)Police Clearance Certificate dated 22 April 2016;[18]

    (d)“Letter of apology”, undated;[19]

    (e)Personal History Statement dated 23 November 2010;[20]

    (f)Passport of the husband;[21]

    (g)Statement of the husband dated 30 September 2016;[22] and

    (h)Application for an applicant who wishes to submit their own claims for protection.[23]

    In giving evidence, the husband confirmed that he had signed the application for a Protection Visa.[24]

    [16] Exhibit A, G-Documents, G3, p. 54.

    [17] Exhibit A, G-Documents, G3, p. 74.

    [18] Exhibit A, G-Documents, G3, p. 78.

    [19] Exhibit A, G-Documents, G3, p. 86.

    [20] Exhibit A, G-Documents, G3, p. 88.

    [21] Exhibit A, G-Documents, G10, p. 216.

    [22] Exhibit A, G-Documents, G11, p. 224.

    [23] Exhibit B, Supplementary G-Documents, SG3, pp. 48, 51.

    [24] Transcript 26.11.18, p. 23.

23. In response to the first bullet point in Question 9: “Has any person named in Question 1, ever:… committed or been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?” the husband ticked “No”.[25]

    [25] Exhibit B, Supplementary G-Documents, SG3, p. 29.

24. Further, in response to the second bullet point in Question 57 of the form: “Have you, or any other person included in this application, ever:… been charged with any offence or have proceedings against you overseas or in Australia?” the husband ticked “No”.[26]

    [26] Exhibit B, Supplementary G-Documents, SG3, p. 35.

25. Lastly, in response to Question 59 of the form: “Have you ever had a visa cancelled by, been refused entry to, or been deported from, any country?” the husband ticked “No”.[27]

    [27] Exhibit B, Supplementary G-Documents, SG3, p. 35.

26. The husband gave evidence about the Protection Visa application at the hearing. In his evidence in chief, the husband was asked whether he understood that certain answers that he gave in the Protection Visa application were alleged to be false; he stated:[28]

    Yes, I understand that I heard that, you know, it was like about some tick marks which I had to say and, you know, I pretty much said no to them but it was not the me who did that it was, you know, my lawyer, my agent who was, you know, filing - who was, you know, putting this case for me and he was actually one who pretty much, you know, fill all the - all the, you know, the tick marks and all the little things in the form. So it was not - it was not me, it was my agent.

    [28] Transcript 26.11.18, p. 9.

27. When asked whether he had any conversations with his migration agent before the form was filled out, the husband replied:

    Yes, I had - I had little bit of, you know, conversation, whatever, he was asking whatever he wanted to know about me so I just - you know, I told - told him and so my whole form was filled by my agent pretty much.

28. When asked whether there was a conversation with his migration agent about him going to court, the husband replied: “No, not really, no. No.”

29. The husband was invited to tell the Tribunal what he was asked by his migration agent in that regard; he stated:

    Yes, I think my agent never asked me anything about court and, yes, pretty much he never ask me anything what my - the whole court thing. He never ask me anything about any - any - any convictions or any charges or any police contact in my history as well.

30. The husband gave evidence that the application for a Partner Visa was completed by the same migration agent and that there was “not really” a conversation about “court”.

31. In cross-examination, the husband was asked whether he had tried to contact his migration agent to give evidence at the hearing; he said he did not.[29] His explanation for this was that he did not know that it was possible to do so. The husband remarked that he did not object to the migration agent being called to give evidence.

    [29] Transcript 26.11.18, p. 23.

32. The husband was asked whether he read the Protection Visa application before signing it; he replied:

    I didn’t read – definitely if I was going to read them I was definitely – I was not going to, you know, I definitely wasn’t going to (indistinct) them and I just signed them and it was filled by my lawyer and I was the one. I just signed them and then I trust my lawyer. I think like whatever he did, it’s good.

33. The husband was asked whether he knew, before signing the Protection Visa application, that giving false or misleading information was a serious offence; he responded: “Yes, for sure. Yes”.[30]

    [30] Transcript 26.11.18, p. 24.

    The husband’s reasons for claiming protection

34. For completeness, I will reproduce herein the complete claims made by the husband in his application for a Protection Visa as to why he sought protection in Australia in order to not return to India:[31]

    [31] Exhibit B, Supplementary G-Documents, SG3, pp. 43-46.

    Question: Why did you leave that country?

    Answer: I was subjected to torture and inhuman treatment by extended family member and land mafia. I was forcefully living a miserable life since year 2008 due to property dispute with my uncle and cousin

    Question: Have you experienced harm in that country?

    Answer: Yes. As discussed above, I was subject to torture and inhuman treatment since 2008. It all started with family land dispute which we have inherited from our forfathers. I have witnessed brutal beatings by my cousins and uncle who want to take our land from us and to extort inherited jewels from my family. Being a prime witness and victim of continuous beating and torture from my cousins and uncle due to property acquision. I have migrated to Australia as a student because I want to live a peaceful life as land dispute deaths are one of the main problems which northern India is facing.

    Question: What do you fear may happen to you if you go back to that country?

    Answer: Me, my sister and my parents have been severly suffering and facing threats from our uncle for control of our inherited land and jewellery which has not been distributed equally by our ancestors. Due to sudden death of our grandparents, my uncle and their family started extortion. I have planned escape from their trap and somehow collected funds with help of my parents. Control of land holding was not only problem which I was facing. In addition to this they force me to work as a slave, day and night for their farms. Some goons who was bribed by cousins along with police start bullying us which in later turn to attacks on our family wounding us badly. I have been having worst nightmares since my last arrival from India in year 2012, but no one thought to share my sorrows and pains which are ever lasting. I am still suffering from threats and depression which can be evidence by my medical certificates and doctor reports

    Question: Who do you think may harm/mistreat you if you go back?

    Answer: My uncle, cousins and extended relatives will surely continuing mistreating us till the date we give our land and gold in India to them. Acid throwing and murders due to land grabbing are very common. On one occasion they have beaten me with sticks and iron road resulting in head injuries which caused me problem for my life. My greatest fear is that they will take my land away from us and will do a severe bodily harm. They might force me to slavery for money.

    Question: Why do you think this will happen to you if you go back?

    Answer: Me and my partner have survived attacks and torture from my uncle and cousins for land dispute. I have planned mine escape from their trap to Australia on study visa as I am qualified. They will take revenge from me once I go back as they threatened of same when I was in India. Due to their ongoing threats and possible attacks, I have overstayed on my visa so no one can trace me through any Australian services. They left me fearing for my life so I don’t share any communication because they have attacked me with iron roads in past giving me injuries.

    Question: Do you think the authorities of that country can and will protect you if you go back?

    Answer: India system is corrupt. Police officer and local officials can be bribed at any time. My uncle and cousins are very powerful, they can try to bribe officials in India who can order Panchayat to acquire our land and forced us to slavery and misery (errors in original).

    The primary decision to refuse the Protection Visa

1. On 13 March 2014, the respondent refused the husband’s application for a Protection Visa on the basis that the husband did not satisfy subsection 36(2) of the Act.[32] Information regarding appeal rights was provided to the husband to seek further review by the Refugee Review Tribunal (“RRT”).

   [32] Exhibit B, Supplementary G-Documents, G4.

2. The delegate made findings as to the husband’s credibility and remarked that:[33]

   … the [visa] applicant did not attend a [Protection Visa] interview scheduled for 10/03/2014 and has not provided evidence of a reasonable reason why he failed to attend. The claims in the written application are so broadly stated or generalised that they contain insufficient information for me to assess the applicant’s credibility or make any meaningful findings of fact relating to the applicant’s specific circumstances. I have therefore made no findings of fact on the applicant’s written claims.

   [33] Supplementary G-Documents, SG4, p. 76.

   The decision of the Refugee Review Tribunal

3. On 20 October 2014, the RRT affirmed the decision of the delegate of the respondent dated 13 March 2014 to refuse to grant a Protection Visa to the husband.[34] The RRT observed in its reasons that it had advised the husband on 5 September 2014 that it was not able to make a favourable decision on the information before the RRT alone. The RRT invited the husband to attend a hearing on 17 October 2014 to present arguments. The husband did not attend the hearing set down for 17 October 2014 and the RRT made its decision on the information before it pursuant to section 426A of the Act.[35]

   [34] Supplementary G-Documents, SG5.

   [35] Supplementary G-Documents, SG5, p. 90.

   The husband’s evidence as to his claims for protection

4. At the hearing of this matter, the husband was cross-examined as to the claims he had made in his application for a Protection Visa.

5. In giving evidence, the husband stated that the answers he gave as to his reasons for claiming protection, reproduced above, were all true, however, they were “sort of filled” by his lawyer and that the lawyer “definitely did some mistakes there”.[36]

   [36] Transcript 26.11.18, p. 22.

6. After confirming in cross-examination that he signed a declaration that the information supplied in the application for a Protection Visa was correct, the husband stated:

   See, when I signed my forms I trusted my lawyer because – even though it’s kind of – because my friends – so pretty much I trust lawyers. I never have any – I can’t imagine that any lawyer or any agent can be, you know, they can do any mistake so I remember – so I thought it’s definitely 100 per cent true because I’m paying him. It’s not free. I am paying them and why they want to – if I am paying them and they’re lawyer – I’m sure nobody wants to destroy their career just by little mistake and it was just a whole trust thing. That’s why I never – and it’s Australia for sure and the lawyer is from Australia. So, you know – and their honesty is a big thing so I thought okay, I don’t really have to read it.

7. The husband, in giving evidence, stated that his hometown was “fine” before he left but that while in Australia, the crime rate and unemployment had increased. He stated that he had been made aware through a phone call with his parents that there was a family dispute.

8. As to the claims made in his application for a Protection Visa, the following exchange took place in cross-examination between Mr Ray, solicitor for the Respondent, and the husband:

   MR RAY: Were you ever tortured?---Tortured?
   MR RAY: Yes?---Maybe like, psychological. You know, maybe psychologically. But not physical.
   MR RAY: Were you - - -?---Threats can be there. Threats - - -
   MR RAY: Were you ever a slave?---No, no. No.
   MR RAY: Did anyone ever tell you that they were going to torture you or make you a slave?---Not a slave, but definitely when you have a family dispute in my home town, people, they threat you with - they can threat you with different words. They can - you know, the way they express themselves just by vocal, but not really physical. But threats are made here. It’s a common thing when you have a property dispute. The opposition can make statements which are threatening but not really physical, but yes, something like vocal, just by words. By phone call or by emails or by - yes.
   MR RAY: You are saying that they have sent you phone calls and emails, but you have never been physically attacked. Is that right?---Yes, no. Never physically attacked, no.
   MR RAY: Did you tell your lawyer that you had survived attacks and torture from your uncle and cousins?---Survived means that they wanted to attack, or they wanted to, but then they were never successful. It was not a physical survival. It was their idea, and it was that they wanted to do. But it never happened.
   MR RAY: Did you tell your lawyer that they had attacked you with iron rods in past, giving you injuries?---Not really, no.
   MR RAY: Can you give any explanation for how those words would have ended up in your protection visa application if you didn’t tell your lawyer that?---It was - you know, it’s a common threat that people, they want to - when they threat you just by verbally. This is a common attack here, with the iron rod. It’s a common act. But it was a verbal threat, but I was never actually attacked by any physically, like, proper.
   MR RAY: Let me read to you the words which appear in your protection visa application?---Yes.
   MR RAY: It says, and I’m at page 45 of SG03,

   I don’t share any communication because they have attacked me with iron

   MR RAY: and it says roads, but I think it’s meant to be rods,

   in past, giving me injuries.

   MR RAY: Can you give any explanation for why those words would appear in your protection visa application?---See, it was a threat, but it was not ever proper physical harm. It was just a threat.
   MR RAY: But do you understand that it says,

   They have attacked me with iron rods in past, giving me injuries.

   MR RAY: Does that sound like you’re saying that they threatened you?---Yes, it - I was never attacked. It was just a threatening thing.
   MR RAY: I’m not - - -?---I don’t really - I don’t know, yes.
   MR RAY: I’m not suggesting you were attacked. I am suggesting that you were lying to your lawyer when you made your protection visa application?---No, no. I never lied to my lawyer. It was - it was a threat, but I never got attacked, but it was a threat. Maybe it’s a miscommunication between me and my lawyer. Maybe he understand that I’ve attacked, but I was never attacked. It was just a threat.
   MR RAY: Your application also says,

   I was subject to torture and inhuman treatment since 2008.

   MR RAY: That’s not true either, is it?---No, it’s just a threat. It was threats. It was threats made by them. It was not really happened.
   MR RAY: But the threats didn’t happen until after you left India, did they? You said before that when you left India to come to Australia, everything was okay, didn’t you?---Everything was okay, it means the job, what I was doing, it was okay. The business which I was running, it was okay.
   MR RAY: You said everything was okay, and that while you were in Australia the unemployment rate increased and the crime rate increased and you had a family dispute, didn’t you?---The family dispute, it’s ongoing. It’s ongoing for a while. Like, we don’t have any dispute now anymore, but it was ongoing dispute, on and off. And you know, the business was okay, and the job was okay, and then - but once I was - see the family dispute, it’s always there. It was always there. But the unemployment, definitely, you know, the whole - the country - the unemployment and the crime rate, it’s definitely rising, for sure.
   MR RAY: But you were not subjected to torture and inhuman treatment since 2008, were you?---No, no.
   MR RAY: Because in 2008 you weren’t subjected to any physical or psychological torture or inhuman treatment, were you?---No, no.
   MR RAY: When those words appear in your protection visa application, they appear there because you lied in order to achieve the migration outcome you wanted, which was to be able to stay in Australia. That’s why they appear there, isn’t it?---I definitely told my lawyer that, you know, I have threats, the verbal threat in which I have, you know, a torture threat or attack, you know. That the opposition, they want to attack. In which way they want to attack or they want to - it was just threats, verbal threats. But it was never happened in real life. It was just a verbal - they were verbal threats, for sure.
   MR RAY: In another part of your application, you say,

   On one occasion they have beaten me with sticks and iron road, resulting in head injuries which caused me problem for my life.

   MR RAY: That’s another lie, isn’t it?---I was never - I was never attacked all my life.
   MR RAY: When it says in your protection visa application that you were attacked, those are lies, aren’t they?---Maybe - maybe it’s - if it says that, you know, that I was attacked, it’s definitely a lie if it says that I was attacked. Because I was never attacked.
   MR RAY: The reason that those lies appear in your protection visa application is because you told them to your lawyer in order to be allowed to stay in Australia. Isn’t that right?---I definitely - I did my protection visa, it was because of the family dispute and because of the whole situation in India and the unemployment, the whole thing. That was the main reason I applied for a protection visa.
   MR RAY: The reason that you lied in your protection visa application was to increase the likelihood that it would be granted. Isn’t that right?---See, I didn’t lie. I actually - I told you again that I didn’t lie. I just - I told my lawyer that I have threats made to me that this is what they wanted to do. It was not the real attack. So it was just the verbal threats. It never happened in real life. Look, it was not a lie. It is true. But the only - I think that maybe it’s a miscommunication between me and my lawyer, that he said - he wrote over here that it happened, but it never actually happened. They were just threats.

   The application for a Partner Visa

9. On 25 June 2015, the husband made an application to the respondent for “migration to Australia by a partner” for both a Partner (Provisional) (Class UV) visa and Partner (Migrant) (Class BC) visa.[37]

   [37] Exhibit A, G-Documents, G3.

10. The husband listed the date that he met the applicant as 10 November 2013.[38] In the application for the Partner Visa, the husband stated that he and the applicant lived together in India for a month between 25 March 2015 to 19 April 2015 after their marriage, and that the applicant returned to Australia due to work commitments while the husband remained in India.

    [38] Exhibit A, G-Documents, G3, p. 39.

11. In the application for a Partner Visa, the husband’s responses indicated that he resided continuously in Australia from 7 August 2009 until 9 November 2014.[39] The information provided in the application for a Protection Visa indicates that the husband resided in Punjab from November 2014 until the time of the application for the Partner Visa.[40]

    [39] Exhibit A, G-Documents, G3, pp. 43-44.

    [40] Exhibit A, G-Documents, G3, p. 61.

12. As to whether he had ever had a visa cancelled or a visa application refused, the husband’s complete response was “Yes…. Protection visa class XA was refused at 04/12/2013”.[41]

    [41] Exhibit A, G-Documents, G3, p. 44.

13. The husband’s responses to the following questions within the “Character declarations” section of the Protection Visa application were “No”:[42]

    Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?...

    Has any applicant ever overstayed a visa in any country (including Australia)?

    Has any applicant ever had any outstanding debts to the Australian Government or any public authority in Australia?

    [42] Exhibit A, G-Documents, G3, pp. 45-46.

14. The husband’s responses to the following items within the “Declarations” section of the Protection Visa application were “Yes”:[43]

    [43] Exhibit A, G-Documents, G3, p. 47.

    Warning:

    Giving false or misleading information is a serious offence.

    The applicants declare that they:

    Have read and understood the information provided to them in this application.
    Yes

    Have provided complete and correct information in every detail on this form, and on any attachments to it.

    Yes

    Understand that if any fraudulent documents or false or misleading information has been provided with this application… the application may be refused and the applicant(s)… may become unable to be granted a visa for a specified period of time.

    Yes

    Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.

    Yes

    Will inform the Department… in writing immediately… if there is any change relating to the information they have provided in or with this application, while it is being considered.

    Yes

    The first refusal of the Partner Visa

15. On 8 April 2016, the respondent wrote to the husband to request further information in respect of the application for a Partner Visa, requiring a response within 28 days.[44]

    [44] Exhibit A, G-Documents, G6, p. 177.

16. The husband completed a “Form 80 – Personal particulars for assessment including character assessment” (“Form 80”) dated 28 June 2015.[45] In the section of the applicant where the visa applicant is asked to provide details of all employment and unemployment since birth, the husband listed only a period of employment from October 2009 to March 2010 in a sales role in Australia.[46]

    [45] Exhibit A, G-Documents, G3, pp. 58-75.

    [46] Exhibit A, G-Documents, G3, p. 62.

17. In the Form 80 dated 28 June 2015, the husband answered “No” to having been convicted of a crime or offence in any country, to having been charged with any offence or having proceedings against him whether in Australia or overseas. The husband also answered “No” to having ever been under a probation order, good behaviour bond, on parole, released on licence or subject to a periodic detention overseas or in Australia.[47]

    [47] Exhibit A, G-Documents, G3, p. 66.

18. In the Form 80, the husband declared that he had been refused a Protection Visa.[48]

    [48] Exhibit A, G-Documents, G3, p. 67.

19. As to personal contacts in Australia, the husband listed only the applicant in the Form 80.[49] The Form 80 provides: “Personal contacts include visa sponsors, any relatives, friends, family members and acquaintances in Australia”.

    [49] Exhibit A, G-Documents, G3, p. 73.

20. The husband’s signature appears in answer to Question 54 of the Form 80 which is a declaration that the information supplied is complete, correct and up-to-date in every detail, and that the visa applicant has read and understood the information supplied to them.[50]

    [50] Exhibit A, G-Documents, G3, p. 74.

21. On 12 July 2016, the respondent again wrote to the husband to request further information within 28 days.[51]

    [51] Exhibit A, G-Documents, G6. p. 179.

22. On 20 October 2016, the respondent again wrote to the husband to request further information within 28 days.[52] On this occasion, the respondent sought further information in addressing the character requirements. The respondent required the husband to obtain a notarised, coloured copy of his Police Clearance Certificate from the Regional Passport Office.[53] The respondent also required the husband to obtain a “Complete Disclosure” format Australian Federal Police National Police Check as the police check document he had already provided was not in that format. The respondent also advised the husband that he owed had a debt to the Commonwealth of Australia of $1,604.00.[54] It is possible to infer this debt arose from the husband’s unsuccessful application in the RRT for review of the respondent’s decision to refuse his application for a Protection Visa as a letter dated 21 October 2014 states: “… your application to have that decision changed has been unsuccessful. It also means that you must pay a fee of $1,604”.[55]

    [52] Exhibit A, G-Documents, G6, p. 181.

    [53] Exhibit A, G-Documents, G6, p. 184.

    [54] Exhibit A, G-Documents, G6, p. 185.

    [55] Exhibit B, Supplementary G-Documents, SG5, p. 84.

23. On 6 October 2017, the respondent gave to the husband a notice of intention to consider refusal (“NOICR”) of his application for a Partner Visa on the following basis:[56]

    The [respondent] holds information about your criminal history listed at the end of this notice, which suggests that you may not pass the character test by virtue of s501(6)[d] of the Migration Act

    subparagraph 501(6)(d):        In the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
    

    [56] Exhibit A, G-Documents, G3, p. 122.

    (i)        engage in criminal conduct in Australia

24. The respondent gave the husband 28 days to respond to the NOICR. On 1 November 2017, the husband’s then solicitor wrote to the respondent to request further time to respond to the respondent’s NOICR.[57] This request was granted by the respondent on 3 November 2017 affording the husband until 1 December 2017 to provide his response.[58] The husband provided his response to the NOICR on 1 December 2017.[59]

    [57] Exhibit A, G-Documents, G3, p. 129.

    [58] Exhibit A, G-Documents, G3, p. 128.

    [59] Exhibit A, G-Documents, G3, p. 134.

    The decision under review

25. On 20 April 2018, the respondent decided to refuse the husband’s application for a Partner Visa (Provisional) (Class UF).[60] By virtue of the refusal of this visa pursuant to subsection 501(1) of the Act, the application by the husband for a Partner (Migrant) (Class BC) visa was also taken to have been refused pursuant to subsection 501F(2) of the Act.

    [60] Exhibit A, G-Documents, G2, p. 7.

26. The delegate considered, having regard to the husband’s sexual assault offending, that there was a risk that the husband would engage in criminal conduct in Australia and as a consequence, he did not pass the character test by virtue of subparagraph 501(6)(d)(i) of the Act.[61] The delegate then exercised the discretion in subsection 501(1) of the Act to refuse to grant a Partner Visa to the husband. The delegate gave weight to the primary consideration of protection of the Australian community by taking into account the nature and seriousness of the husband’s conduct. The delegate considered that the offences committed by the husband were “serious” offences as they were “sexually based offences”. The delegate came to this conclusion despite the husband’s contention that the offending was described by the sentencing judge as being “at the lower level of offending” for that type of offence.[62] The delegate also gave weight to the primary consideration of the expectations of the Australian community and considered that the “Australian community would expect the visa application to be refused” due to the nature of the offending.

    [61] Exhibit A, G-Documents, G2, p. 21.

    [62] Exhibit A, G-Documents, G2, p. 22.

27. As to the risk of harm if the husband was returned to India, the delegate noted that the RRT had affirmed the respondent’s decision to refuse to grant a Protection Visa to the husband and that the husband had in fact returned to India in November 2014 and continued to reside there.

28. The delegate had regard to the applicant’s evidence that she suffered from “mental and physical health issues as a result of the outstanding issues surrounding the partner visa application and their ability to live together as husband and wife”.[63]

    EVIDENCE

    [63] Exhibit A, G-Documents, G2, p. 23.

    Sexual assault offences

29. A National Police Certificate dated 27 July 2016 produced by the Australian Federal Police discloses that the husband was sentenced in December 2010 to a probation order for two years in relation to two charges of sexual assault pursuant to paragraph 352(1)(a)[64] of the Criminal Code 1899 (Qld).[65]

    [64] “Any person who---unlawfully and indecently assaults another person… is guilty of a crime. Maximum penalty---10 years imprisonment”.

    [65] Exhibit A, G-Documents, G3, p. 76.

1. A Police Clearance Certificate produced by the Ministry of External Affairs of India dated 5 August 2016 certifies that there was “no adverse information against [the husband] which would render him… ineligible for grant of travel facilities including visa for COMMONWEALTH OF AUSTRALIA”.[66]

   [66] Exhibit A, G-Documents, G3, p. 77.

2. In a Police Clearance Certificate produced by the husband’s local Office of the Senior Superintendent of Police dated 22 April 2016 certifies that the husband “bears good moral character, reputation and nothing adverse against him… criminally…”.

3. The husband’s criminal offending history is limited to the sexual assault charges to which he pleaded guilty in December 2010.

4. In December 2010, Judge Koppenol of the District Court of Queensland ordered the husband to undertake two years of probation following his plea of guilty to the two sexual assault offences. Judge Koppenol made the following remarks during the sentencing hearing:[67]

   [67] Exhibit A, G-Documents, G3, pp. 79-80.

   Sexual assault is a serious offence…

   On March 24, 2010 at Brunswick Street station in the Valley you approached the 18 year old female complainant. You didn’t know the girl. There were lots of people in the area waiting for trains as she was. You offered to shake the girl’s hand and she agreed and shook your hand. You got to talking. You said that you could read her palm, which you did, and you subsequently put your arm around the girl and whispered in her ear and then kissed her neck. The girl protested and said that she had a boyfriend and that she wasn’t interested in your advances, but you continued kissing her neck. Then stupidly, as if your conduct previously wasn’t stupid, you pulled the girl’s shirt open and looked at her breasts and then grabbed one of her hands and put it on your crotch. The girl thought at that time that you had an erection and you also stroked one of her breasts, all of that’s Count 1.

   The train came along. The girl got on the train. You then followed her and sat next to her and put your arm around her. She protested again and mentioned her boyfriend. You kissed her neck and then she became even more upset. The train got to Yeronga station and she got off and she was crying. She went home and told her boyfriend and the matter was subsequently reported to police.

   The police checked the CCTV footage at the railway station and an alert police officer, a few days later, happened to notice you in the Queen Street Mall. You were arrested and generally speaking you cooperated with the police.

   … you came from India… and you’ve been in Australia about 6 months; you’re a student. You’re currently 32 years of age and you were 31 at the time. The complainant woman was only 18… counsel submitted that you had limited experience with the opposite sex prior to your coming to Australia and after you came here your experience in the backpackers’ accommodation and various nightclubs demonstrated to you a level of sexual openness which you hadn’t seen before. I accept all that. [Counsel] also submitted that you misread the girl’s responses to your approaches and I think there’s a level of truth in that.

   Cultural differences between countries are very important. That’s one of the things that makes travelling from one country to another such an exciting thing – that there are cultural differences. Now, from time to time, people forget those cultural difference[s], even with the best intentions, but I think you went completely over the top here. I really find it very difficult to accept that you thought that your conduct was acceptable. I think what happened was that you were greeted by this young woman in a very friendly way and that is to her credit, but you misread that and thought that the girl was interested in you, even though you’d never met before and you were about 32 years older than she was and that she had a boyfriend.

   It was a scary experience for the complainant. A copy of it was tendered. It will be up to the Director of Public Prosecutions as to whether they pass that on to the complainant. No victim impact statement was obtained by the complainant. I was informed that she had told the Director of Public Prosecutions office that she was not interested in doing that and she wanted to move on with her life – a completely understandable approach taken by her.

   I also note that there’s been no repetition of this type of behaviour on your part since this particular occasion.

   Now one thing’s for sure… if you’re going to stay in Australia you’re going to have to do the right thing by our laws and by our customs and you’ve got to be very careful when it comes to approaching women, especially women you don’t know. You now know that this type of behaviour is quite unacceptable and hopefully you’ve gained more experience in your social activities about how you should treat women – with great respect.

   What I’ve decided to do is to accede to [Counsel]’s submission and place you on a probation order. You don’t have any previous offences. Given that you misread the circumstances here and express great remorse for your actions and appreciate that what you did was wrong, and having regard to the fact that I’m giving you the benefit of probation, I’ve decided not to record a conviction.

5. In an undated letter of apology to the victim, the husband wrote:[68]

   I am truly sorry for my actions on 24 March this year. It has upset me to read the witness statements from you… and to learn how distressing my actions were to you.

   I now accept and realise that what I did was very wrong, although I did not realise it at the time.

   The different societal values between here and India meant that I thought my behaviour was acceptable – it clearly was not and I have learned from my error, and I am remorseful that my lesson came at your expense and suffering. I would like you to know that I never set out to intentionally hurt or upset you.

   I hope that my actions have not been the source of ongoing fear and worry for you and that you have been able to move on with your life. Once again, I am very sorry for having put you through this suffering…

   [68] Exhibit A, G-Documents, G3, p. 86.

6. The husband provided a personal history statement as part of the sexual assault proceedings dated 23 November 2010.[69] The husband stated that he grew up in a loving and happy household and that he had a good relationship with his parents. He stated he had no criminal history. He stated that he worked for an American company in India for two years, and then for a company resorts selling time-share apartments for a further two years. He stated he then moved to Zanzibar also selling time-share apartments for four months. He then returned to India and worked for his father’s business. The husband stated that his father’s business was a “migration agency business which helped international students and workers obtain the necessary visas and such like. I worked with my father for a few years before coming to Australia”. He stated he first came to Australia to study a pastry chef qualification but he did not enjoy it. He then enrolled in a diploma in automotive mechanical technology. He stated that on arrival in Australia, he first worked as a door-to-door salesperson selling insulation. He then worked for six months with one charity, and then with Médecins San Frontières for a further six months.

   [69] Exhibit A, G-Documents, G3, pp 87-88.

7. In his personal history statement, the husband remarked:[70]

   I accept the offending conduct as described against me in the attached schedule of facts, with the exception of when the complainant started to cry. At no time did I see the complainant cry while she was sitting next me...

   India is a very conservative country, where both men and women wear long clothes and their skin is largely covered when in public. On arriving in Australia I started to go to clubs and bars and found that in Australia females are more liberal than Indian females, and in particular, are more open to advances from men…

   Since this incident I have not gone out to clubs and had much to do with women. I have been working and hanging out with my male friends…

   [70] Exhibit A, G-Documents, G3, p. 88.

8. In an undated letter of reference to the Court, a client manager in insurance claims and friend of the husband (“client manager”) stated she had known the husband since July 2010.[71] She stated she had met the husband at a bar while having drinks. She stated since then she and the husband had attended parties and bars and the husband had been to her house. She stated she was shocked that the husband committed the sexual assault offences as she considered the husband to be a polite person who is respectful to women. The client manager stated she had been out to bars and nightclubs with the husband and had never seen him act inappropriately towards women and she trusts him. The client manager remarked she had no doubt the husband would never again find himself “in this position”.

   [71] Exhibit A, G-Documents, G3, p. 98.

9. On 30 November 2010, a friend of the husband (“friend”) wrote a letter of reference to the Court in the course of the sexual assault proceedings.[72] The friend stated that he had become good friends with the husband through their attendance at the Sikh temple. The friend stated that he had known the husband for about one year prior to writing the letter and that the sexual assault offences were out of character for the husband. The friend wrote that he could understand how the husband could have had a misunderstanding with the complainant as the husband comes from a very conservative culture and that this was the upbringing that the husband would have had in India. The friend remarked that the husband was “aware of how inappropriate his actions were, and that his actions were criminal in the face of the young lady’s uneasiness and her indications that [she] was not welcoming of his advances”. The friend concluded by stating that the husband is an active member of the Sikh temple and was well liked by all.

   [72] Exhibit A, G-Documents, G3, p. 93.

10. On 30 November 2010, another friend of the husband (“other friend”) wrote a letter of reference to the Court in respect of the sexual assault proceedings.[73] The other friend stated he was aware that the husband was going to plead guilty to two counts of sexual assault. He stated he was familiar with the facts and circumstances leading to the charges. He stated he met the husband 17 years prior to 2010 when in school in India. The other friend and the husband travelled together to Australia to Study. The other friend attributed the husband’s offending to having left a conservative culture and arriving in a liberal culture and not knowing “where the line was”. The other friend drew attention to the husband’s initial experiences in Australia in backpacker hostels going to clubs and this formed part of the husband’s early understanding of life in Australia.  The other friend considered the husband to be remorseful and aware of the impropriety of his conduct leading to the sexual assault charges. The other friend considered that the husband “will not ever commit such offences again”.

    [73] Exhibit A, G-Documents, G3, p. 96.

11. On 30 November 2010, a letter of reference to the Court was given by a friend of the husband from Switzerland (“Swiss friend”) who was studying in Australia at the time.[74] She commenced by stating she had known the husband since she had met him in India in 2009 while travelling there, and that she was aware of the sexual assault charges. The Swiss friend stated that the husband had offered to collect her from the airport on her arrival in Australia and she stayed with the husband for four days while she found suitable accommodation in Australia. The Swiss friend recounted she had always found the husband to be a gentleman who was courteous and respectful towards women. She considered the sexual assault charges to be “inconsistent” with her interactions with the husband. The Swiss friend remarked the husband was remorseful and upset by his actions.

    [74] Exhibit A, G-Documents, G3, p. 99.

    Probation

12. The husband undertook a period of probation from December 2010 until 30 November 2012 which as I mentioned earlier, was completed without incident.[75] The probation officer remarked that initially, the husband was recommended to complete an Agency sex offender program, however, he was deemed unsuitable for this and instead engaged with a counselling service to address cultural differences in relation to forming relationships, Australian law and the personal impact of the incident. The husband completed six counselling sessions.

    [75] Exhibit A, G-Documents, G3, pp. 84-85.

13. A “long-term static risk” assessment of the husband identified him as being in the moderate-high risk category, with individuals in that score range having a 8.7% rate of recidivism over a five year period.[76]

    [76] Exhibit K, Summonsed material, pp. 113, 116.

14. A “Stable-2007” assessment was completed on 21 March 2012,[77] which identified issues in relation to the husband’s social influences, capacity to maintain a stable relationship and cognitive problem solving skills; however, specific interventions were not undertaken in respect of the outcome of that assessment as his probation order was due to complete later that year. The husband satisfied the reporting requirements. The probation officer deemed the husband suitable for further community based orders and his response to supervision was satisfactory, while maintaining employment for the entirety of his order and he self-reported to be studying in addition to working.

    [77] Exhibit K, Summonsed material, pp. 102-112.

15. The assessor who administered the Stable-2007 Assessment gave the husband a “Static-99R Score: Moderate-High”. The assessor assigned scores above zero to “Category 1 – Significant Social Influences”, “Category 2 – Intimacy Deficits: 2.1 – Capacity for Relationship Stability”, and “Category 3 – General Self Regulation: 3.2 – Poor Problem Solving”.

16. As to “Category 1 – Significant Social Influences”, the assessor remarked that the husband “gave the impression that cultural differences is the reason he advises most people for his offending”. The assessor commented that the husband was unable to identify any significant social supports either in Australia or in India and he was unable to name anyone that he would contact regarding problems, for advice or if he was lonely.

17. As to “Category 2 – Intimacy Deficits: 2.1 – Capacity for Relationship Stability”, the assessor remarked that the husband “has had only… a few relationships in his life time given his cultural upbringing with regards to arranged marriages, therefore dating when in adolescent was out of the question until he moved to Australia”.

18. As to “Category 3 – General Self Regulation: 3.2 – Poor Problem Solving”, the assessor remarked that the husband “presented with an avoidant coping style in that he talked about escaping to cope with stress”. The husband stated to the assessor that he does not communicate with others which reinforced why no one really knew about his offending. The assessor remarked that people with avoidant copying styles “do not wish to be involved in relationships or social activities, usually showing a fear of commitment”. The assessor further remarked that the husband “lacks long term plans he stated that he would like to move back to India and live in the ‘hills’ ‘meditating’ however, was unable to provide a way he would actually do this”.

19. There is no record of the husband having advised a probation officer that his student visa had been cancelled. A record by an officer of Queensland Corrective Services dated 1 December 2010 contains the following observations: “Employment: Unemployed… has been studying since 2009. He stated he is here on a student visa. He advised no conviction was recorded. He stated his visa is current for another twelve months. His probation Order is for two years”.[78] I earlier observed that the husband’s Student Visa was cancelled by the respondent approximately one month earlier on 5 November 2010.[79]

    [78] Exhibit K, Summonsed material, p. 76.

    [79] Exhibit B, Supplementary G-Documents, SG1, p. 2; SG2.

20. On 2 December 2010 the husband presented a student card from a university to an officer at Queensland Corrective Services.[80] On 23 December 2010, a probation officer recorded that it directed the husband to provide a copy of his visa to them for their records, however, it is not apparent from the records that this occurred and the records generally indicate that the husband advised Queensland Corrective Services that he continued to study following the cancellation of his student visa.[81] On 16 August 2012, the husband “stated he is having a semester break from his studying, which is permitted under his visa conditions. He will return to his studies in January”.[82] On 11 October 2012, the probation officer recorded that the husband stated “he intends to travel back to India after his probation Order expires and will stay there for 1 month. He acknowledged he needs to recommence studying in January if he is to comply with the conditions of his visa and return to Australia. The visa expires in April 2013 but [the husband] advised he can extend this”. The husband has provided false information because his Student Visa had already been cancelled.

    [80] Exhibit K, Summonsed material, p. 74.

    [81] Exhibit K, Summonsed material, p. 72.

    [82] Exhibit K, Summonsed material, p. 28.

21. There is a note recorded on 5 May 2011 by a probation officer in which it is recorded that the husband had discussed the possibility of visiting India for one month during his probation and the husband had been advised of the process for seeking approval to leave Australia by his probation officer.[83] The husband has contended that he remained in Australia during his probation period because he believed he was not permitted to leave Australia during the period covered by the probation order. In light of this information recorded by the probation officer, I cannot accept this contention of the husband.

    [83] Exhibit K, Summonsed material, p. 66.

22. On 11 November 2011 an entry records that a probation officer had concerns about inconsistency in what the husband had reported in his parole interviews with respect to his employment history, his relationship history, his attendance at counselling, proof of his address, and that he had been pushing boundaries with his probation officer.[84]

    [84] Exhibit K, Summonsed material, pp. 53-57.

23. On 25 November 2011 a probation officer recorded that she was informed by the husband that he “remains on a student visa, which is valid for a further year. [Probation Officer] to explore the conditions of this at the next [office visit]”.[85]

    [85] Exhibit K, Summonsed material, p. 50.

24. On 8 December 2011, a probation officer recorded that the husband had recently met an Italian girl through an internet dating site and “Discussion suggested [the husband] assumed anyone agreeing to meet him would be interested in a physical relationship and he did not seem to have considered this may not be the case…”.[86] The husband told the probation officer he continued to study an automotive course and had another nine months until completion,[87] and reiterated in February 2012,[88] and again on 23 April 2012,[89] that he continued to study that course. On 23 May 2012 a probation officer recorded the husband “continues to ‘kind of’ study and has not been doing much else with his time”.[90]

    [86] Exhibit K, Summonsed material, pp. 48-49.

    [87] Exhibit K, Summonsed material, p. 47.

    [88] Exhibit K, Summonsed material, p. 36.

    [89] Exhibit K, Summonsed material, p. 33.

    [90] Exhibit K, Summonsed material, p. 32.

    The evidence and contentions of the applicant and the husband

25. The applicant filed a closing submission on 9 September 2019, enclosing a number of documents, including submissions and evidence which was not before the Tribunal at the hearing.

26. It is clear that the applicant has invested considerable time, effort and expense in order to progress this application to this point and she is to be commended. The applicant’s submissions disclose that she has engaged a number of different representatives, both migration agents and lawyers, throughout the course of this Partner Visa application and I am conscious of the difficulties she has faced in putting her case forward to this Tribunal as a result. I am mindful of the difficulty the applicant has faced in obtaining further psychological assessment of the husband due to the financial cost, and I make no comment other than to note there has been no recent psychological assessment report concerning the husband put into evidence before the Tribunal.

1. I affirm the decision under review.

211.    I certify that the preceding 210 (two hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

…………………………………………..

Associate

Dated: 13 August 2020

Dates of Hearing:	26 October 2018 26 November 2018
Decision reserved:	9 September 2019
The Applicant:	In person
The Other Party	By video-link
Solicitor for the Respondent:	Mr Adam Ray, Clayton Utz