DAYOUB (Migration)

DAYOUB (Migration) [2019] AATA 4214 (24 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jamal DAYOUB
CASE NUMBER:  1713601
DIBP REFERENCE(S):  BCC2015/2779200
MEMBER:Russell Matheson
DATE:24 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 24 June 2019 at 8:49am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – genuine spousal relationship – insufficient evidence regarding relationship – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 359AA, 359A
Migration Regulations 1994 (Cth), r 1.15A(3); Schedule 2, cls 820.211, 820.221; Schedule 3, Criterion 3001

CASES
Babicci v MIMIA (2005) 141 FCR 285
Khan v Minister for immigration and citizenship (2011) 192 FCR 173
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

This is an application for review of a decision of a delegate of the Minister for Immigration on 30 May 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 21 September 2015 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied there were compelling reasons to waive the Schedule 3 criteria. The applicant attended a Tribunal hearing held on 6 March 2017 to give evidence and present arguments. Consequently the member conducting the hearing affirmed the decision not grant the applicant a partner visa on 8 March 2017.
On 15 June 2017 the Federal Magistrates Court ordered that the matter be reconsidered on the basis the member had before them [information] regarding the [applicant] and sponsor which was relevant to the issue under review and which the Tribunal did not put to the applicant in accordance with s.359A of the Act or expressly disclaim its reliance on that information. Khan v Minister for immigration and citizenship (2011) 192 FCR 173.
The applicant appeared before the Tribunal on 21 September 2018 to give evidence and present arguments. The applicant’s sponsor did not appear before the Tribunal. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant is the spouse of the sponsor as defined in s.5F of the Act and whether there are compelling reasons to waive the Schedule 3 criteria.
The Tribunal has before it the applicant’s file from the Department of Immigration (the Department); its own file; and a copy of the Department’s decision provided by the applicant to the Tribunal.
The evidence the applicant provided at the Tribunal hearing is recorded throughout this decision record.
Hearing
At the beginning of the Tribunal hearing the Tribunal told the applicant that certain information in the Department file is the subject of [a non-disclosure certificate]. The Tribunal told the applicant it has considered the certificate and finds that the certificate is valid.
The Tribunal told the applicant the certificate prevents the Tribunal disclosing any document, matter or information referred to in the certificate as it would be contrary to the public interest. The Tribunal also told the applicant that disclosure of the identified material is subject to the Tribunals discretion. The Tribunal told the applicant that it had considered the information that is the subject of the certificate and is of the view that [the] information is relevant to this [case]. The Tribunal considers the information the subject of the [certificate] relevant to this review.
The Tribunal told the applicant that other information relevant to the application under review will be put to the applicant in accordance with s.359AA of the Act.
The Tribunal asked the applicant if he wished to comment on or respond to the validity of the [certificate]. The applicant said that he did not understand and made no further comment.
In accordance with s.359AA the Tribunal put to the applicant the information subject to the [certificate] that it would consider to be the reason or part of the reason for affirming the decision. The Tribunal explained the relevance and the consequences of the information and invited the applicant to comment on or respond to the information. The Tribunal also told the applicant that he could respond to that information orally or in writing or he could seek additional time to comment on or respond to it.
The Tribunal told the applicant information contained in folios 206-207 now identified as folio’s 246-247 in the Department file contains [specified information]. The applicant chose to respond to the [information] orally at the hearing. The applicant stated:
·[details deleted].
There is no other evidence before the Tribunal to [support the specified information] and the Tribunal places no weight upon the [information] that is the subject of the [certificate]. The Tribunal informed the applicant of its decision not to place any weight on the [information] at the hearing.
The applicant at the beginning of the hearing raised the issue of [details deleted].
Whether the parties are in a spouse or de facto relationship
Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.
‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant provided a copy of the marriage certificate registered under the Marriage Act 1961 indicating the applicant and sponsor were married at Punchbowl, New South Wales on 9 September 2013. There is no evidence before the Tribunal to indicate that the marriage is not valid. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).
In forming an opinion as to whether they are in a marital relationship and in considering whether they have a mutual commitment to a shared life as husband and wife to the exclusion of all others, whether their relationship is genuine and continuing, and whether they live together and not separately and apart on a permanent basis as defined in s.5F(2)(b)-(d), the Tribunal has had regard to all the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3).
After careful consideration of all of the evidence before it, the Tribunal has reached the conclusion that it is not satisfied the applicant is the spouse of the sponsor within the meaning of s.5F of the Act. Below, the Tribunal sets out its consideration of the evidence under the relevant aspects of matters it must take into consideration under r.1.15A(3), and the reasons for its decision.
The Tribunal had the benefit of the applicant’s oral evidence at the hearing and found the applicant vague and his evidence lacked detail at times. The Tribunal gave all the evidence provided by the applicant at the Tribunal hearing and evidence provided by the applicant to the Department and the Tribunal file due regard. The Tribunal acknowledges the delegate’s concerns set out in the primary decision record. The Tribunal discussed these with the applicant in the course of the hearing and based on the evidence provided the Tribunal is not satisfied that the applicant overall is a credible witness.
Are the other requirements for a spousal relationship met?
Financial aspects
The Tribunal has considered the financial aspects of the relationship including any joint ownership of real estate or major assets, any joint liabilities, the extent of any pooling or sharing of financial resources, especially in relation to major financial commitments, whether any person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of daily household expenses.
The Tribunal queried the applicant if he wanted to provide any additional information in regards to his relationship with the sponsor other than he had already provided to the Department and Tribunal. The applicant replied in the negative. The Tribunal asked the applicant if he had opened a joint account with the sponsor. The applicant said that he could not remember exactly when he had opened a joint account. The Tribunal brought to the applicant’s attention that he had opened a joint account with the sponsor after two years of marriage on 21 September 2015. The applicant said that he had opened an account two years after marriage because his marriage had not been approved. The Tribunal queried with the applicant as to how and what contribution he had made to the joint account. The applicant replied that the sponsor looked after him and he made no contribution because he did not have a work permit. The applicant provided no evidence of making any contribution to the joint account. There is no evidence that the sponsor has ever made a contribution to the joint account for day-to-day living expenses. The Tribunal also notes the joint account was opened on the same day the visa application was made on 21 September 2015. The joint bank account statement for the period 21 September 2015 to 4 January 2016 shows four transactions, the initial $100 deposit when opened and three $5 withdrawals and a balance of $85. The Tribunal is of the view due to the limited activity shown on the account statements the joint account was opened for the purpose of strengthening the application for the visa.
The applicant previously provided to the Department with his application a bank statement in the sponsor’s name which shows her salary and Centrelink payments being deposited in to the account which indicate that the account was used for her own personal use. The Tribunal accepts that the sponsor provided limited financial support to the applicant.
There is no evidence before the Tribunal that the parties have any joint ownership of real estate, major assets, joint liabilities or any one person in the relationship owes any legal obligation in respect of the other. The applicant has provided limited information regarding the financial aspects of the parties’ relationship in relation to the pooling and sharing of financial resources or sharing daily living expenses. Based on the evidence provided the Tribunal finds that the financial aspects of the relationship are not indicative of the parties being in a genuine spousal relationship.
Nature of the household
The Tribunal has considered the nature of the household including any joint responsibility for the care and support of children if any, living arrangements and daily routine of the parties and the sharing of the responsibility for housework.
The Tribunal queried the applicant as to when he was living in a spousal relationship with the sponsor. The applicant told the Tribunal that he lived with the sponsor in Wattle Street Punchbowl for about a year and a half and the sponsor got sick and lost the property. He further stated that he did not know why she lost the house. The Tribunal asked the applicant the dates when he was actually living with the sponsor. The applicant told the Tribunal that he can’t remember dates and that he thinks he was living with her in Wattle Street in 2014 and then moved to 2/24 somewhere in Punchbowl and that he cannot remember the name of the street. The Tribunal asked the applicant if he could provide any documentary evidence in joint names or correspondence addressed to the parties as evidence to indicate the parties shared a household together. The applicant was unable to provide any documents in joint names.
The Tribunal queried the applicant as to why the sponsor did not declare their relationship to Centrelink. The applicant stated that he told the sponsor to declare their relationship to Centrelink but she did not want to. He further stated that he does not know why she did not tell Centrelink. The applicant was not able to provide any evidence that the parties shared any joint responsibilities for a household together or lived together.
The applicant told the Tribunal he is now living with his son and daughter-in-law in Melbourne. He further stated that he moved to Melbourne in October 2017 and his children are supporting him because he cannot work because of a bulging disc and bad shoulder. The applicant said that when he was living with the sponsor she got sick and everything collapsed. He further stated that he took care of the sponsor during her illness. The applicant told the Tribunal that he was not nominated as the carer of the sponsor because her son insisted on being her carer and he poisoned his relationship with the sponsor. The applicant provided photographs of visiting the sponsor when she was hospitalised. The Tribunal accepts that the applicant visited the sponsor in hospital but provided no evidence of any ongoing support or care for her condition during the time of their relationship.
There is no documentary evidence before the Tribunal that the parties were living together as a couple, sharing a household and the responsibilities of a household at the time of the visa application. Based on the evidence provided there is an absence of evidence to substantiate that the parties have ever lived together in the same household. The Tribunal finds that the applicant and sponsor did not live together.
Based on the evidence provided by the applicant, the Tribunal finds that the parties did not live together and have not established a joint household together or that the parties shared the household duties or responsibilities for housework. There are no children of the relationship and there is no evidence before the Tribunal of providing care and support for any children. The Tribunal places no weight on this aspect of the relationship based on the evidence presented at the hearing.
Social aspects
The Tribunal considered the social aspects of the relationship, including whether the parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake social activities.
The parties provided two statutory declarations from friends at the time of the visa application attesting to their relationship. The Tribunal places little weight on the declarations as they provided no convincing reasons as to why they believe the relationship is genuine and continuing or give any insight into the inception and development of the parties’ relationship. The Tribunal places little weight on the statements provided.
In regards to the parties’ social activities together the applicant told the Tribunal that he did not go anywhere with the applicant because he did not know his way around. He further stated that he stayed at home and the sponsor went to work. The applicant said that he went to the Titanic café with the sponsor where they first met and a restaurant in Liverpool once but he could not remember the name. He further stated that the parties did not travel together on holidays or attend any significant events together.
Overall there is no convincing evidence before the Tribunal that the parties had ever represented themselves as being in a marital relationship to family, friends or the wider community or that they had undertaken or planned regular joint social activities or that they have taken holidays or travelled together, or had attended any significant events together.
After considering all the evidence before the Tribunal and the oral evidence given by the applicant at the hearing, the Tribunal is not satisfied that the parties represented themselves as being in a committed spousal relationship or were regarded by others as being in a genuine and continuing relationship during their time together.
The Tribunal finds that the social aspects of the relationship do not indicate that at the time of application the applicant and sponsor were in a genuine and continuing relationship.
Commitment
The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length and time the parties have lived together, the degree of companionship and emotional support they provide each other, and whether the parties view the relationship as a long-term one.
The applicant and sponsor claim to have known each other since 25 November 2012 and were married on 9 September 2013. The Tribunal accepts that the parties are lawfully married as they have provided a marriage certificate. The parties have provided little evidence of mutual obligation, companionship, emotional support and long-term planning which are typical elements of a marriage.
The Tribunal is not satisfied that the parties have ever seen their relationship as a long-term one, that they drew emotional support and companionship from each other or that they have ever had a commitment to a shared life together.
There is no evidence before the Tribunal that the parties have combined their affairs significantly to show that they saw their relationship as a long-term one. There is no evidence declaring each other the beneficiary of wills or superannuation to the Department or Tribunal.
There is little evidence before the Tribunal that the parties provided companionship and emotional support to each other especially during difficult times, which is a typical element of a committed relationship. There is little evidence to demonstrate that the applicant provided ongoing care and support to the sponsor during her illness. The applicant’s daughter provided evidence that her father, the applicant, was in a loving and committed relationship with the sponsor until her illness. The applicant’s daughter did not provide evidence of the type or degree of support the applicant provided to the sponsor during her illness. The Tribunal notes that the sponsor nominated her son as her carer during her illness. The applicant provided a number of photographs on one occasion of visiting the sponsor in hospital during her illness. The Tribunal does not find the photographs compelling evidence in regard to the parties’ commitment to each other.

Centrelink records provided to the Department show that the sponsor never declared that she was in a relationship with the applicant and the distinct lack of evidence of combining their affairs since being married in September 2013 indicates that the parties did not have a genuine commitment to their marriage.
Based on the evidence presented at the hearing there is little convincing or supportive evidence indicating the length of time the parties have actually lived together in a marital relationship, or that they draw a degree of companionship and emotional support from each other that is indicative of being in a spousal relationship, or that the parties see their relationship as a long-term one.
Overall, the Tribunal does not find that the evidence supports a mutual obligation and commitment to a spousal relationship. The Tribunal places little weight on this aspect of the relationship.
Other considerations
The Tribunal has considered the applicant’s claims of [deleted]. It has considered the statutory declarations and the information provided as it relates to the parties relationship. The Tribunal on the facts before it has determined, that the parties were never in a genuine and continuing relationship. As the Tribunal has determined that the parties were never in a spousal relationship, it has not gone on to further consider the applicant’s claims of [deleted].
Findings
The Tribunal had the benefit of the applicant’s oral evidence at the hearing and found his evidence to be inconsistent and at times vague and overall not credible. The sponsor was not in attendance at the Tribunal hearing to give evidence.
Based on the evidence provided by the parties the Tribunal finds that the parties do not pool or share their financial resources or share the daily expenses or that they have planned a financial future together. The Tribunal finds that there is no evidence of any joint ownership of real estate or other major assets or any joint liabilities or that one person in the relationship owes any legal obligation in respect of the other.
Based on the evidence provided by the parties the Tribunal finds that there is an absence of convincing evidence to show the parties established a joint household or shared the household responsibilities together, or represented themselves as being in a spousal relationship outside a select group of people. Based on the vagueness of and limited evidence provided by the applicant, the Tribunal finds that the parties have not established a joint household together or that the parties have ever shared the household duties or responsibilities for housework.
Based on the evidence presented the Tribunal finds the weight of evidence does not support that the parties present themselves to the wider community as being married to each other and that friends and acquaintances have a sound knowledge of the nature of the relationship. There is limited evidence before the Tribunal to indicate the relationship is socially recognised outside the applicant’s immediate family members. There is limited evidence that the parties planned and undertook social activities together.
The Tribunal accepts that the parties have known each other for a period of time exceeding five years. Based on the evidence provided by the applicant at the hearing, the Tribunal finds the evidence does not support that the parties have ever lived together or that they draw a degree of companionship or emotional support from each other that is indicative of being in a genuine spousal relationship or that they viewed their relationship as a long-term one.
Overall, having considered all the circumstances of the relationship, the Tribunal finds the weight of evidence does not support a finding the parties have ever been in a genuine and continuing relationship. The Tribunal does not consider the financial, household, social or commitment aspects of the parties’ relationship are indicative of a couple with a genuine, mutual commitment to a shared life together.
Taking the above into account and considering all of the evidence cumulatively and holistically, the Tribunal is not satisfied the applicant and the sponsor have established that they are in a genuine and continuing relationship or have a mutual commitment to a shared life together to the exclusion of all others or that they are not living separately and apart on a permanent basis.
On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time the visa application was made and the time of this decision. There is no information before the Tribunal that the applicant would satisfy any of the alternate criteria for the grant of the visa.
Given these findings the Tribunal is not satisfied that at the time the visa application was made and the time of this decision the parties were in a spousal relationship. Therefore the applicant does not meet cl.820.211(2)(a) or cl.820.221.
There is no evidence before the Tribunal that the applicant satisfies any of the alternate criteria for the grant of the visa.
Given these findings the Tribunal is not satisfied that at the time the visa application was made or at the time of this decision the parties were in a spousal relationship.
Does the applicant meet Schedule 3 criteria, or should those criteria be waived?
An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl.820.211(2)(d).
It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue 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
In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision.
The primary decision record indicates that the applicant entered Australia in September 2009 on a Subclass 676 visa which ceased on 26 December 2009. The applicant lodged his partner visa application on 21 September 2015.
As the partner visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.
Compelling reasons
As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is required to consider whether there are compelling reasons for not applying the criteria.
The expression ‘compelling reasons’ is not defined for these purposes. However, 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.
The Tribunal invited the applicant to present compelling reasons for not applying the criteria. The Tribunal has considered the applicant’s evidence concerning the compelling circumstances in his case. The applicant provided no additional documentary evidence to the Tribunal at the hearing.
The Tribunal queried the applicant in regard to his poor immigration history as to why remained unlawful in Australia after being granted Bridging Visa E’s to depart Australia from 2013 to 2014 and return to Lebanon. The applicant replied that his wife was ill at the time and he could not leave her and he was too scared to return. The applicant asserted that he was afraid to return to Lebanon because of the status of the war in Lebanon and Isis is after him. He further stated that he had applied for [a permanent visa] to remain in Australia as an Alawite converting to Christianity but was rejected. The applicant said that he did not appeal his refusal and did not pursue any further [visa]. The applicant told the Tribunal that he feels safe and secure in Australia and does not want to return to Lebanon because there are too many sectarian problems. There is little evidence before the Tribunal that the applicant had or continues to have fears for his safety if he had to return to Lebanon, although the Tribunal accepts that there are traditional sectarian conflicts that exist in Lebanon. The Tribunal notes that the applicant’s former wife and three daughters and other family members continued to live in Lebanon at the time of his visa application and one of his daughters made an application to come to Australia on a prospective marriage visa arriving in January 2019. The Tribunal places little weight on the applicant’s evidence of having to care for his wife as another reason for remaining unlawfully in Australia. Based on the evidence provided the Tribunal does not accept that the applicant and sponsor were in a genuine spousal relationship and is of the view that the applicant’s visa application history demonstrates a willingness to make all possible attempts and use all possible pathways to remain in Australia. There is little evidence before the Tribunal to indicate that the applicant genuinely fears for his safety. The Tribunal is not convinced that the applicant’s fears for his safety or sectarian conflict in Lebanon justify remaining in Australia unlawfully, rather that the applicant chose to remain in Australia unlawfully while awaiting circumstances which would allow him to make a visa application onshore. The Tribunal having considered the circumstances outlined by the applicant finds they are not compelling reasons to justify waiving the Schedule 3 requirements.
The applicant informed the Tribunal he is being supported by his children living in Australia (Melbourne) and cannot work because he injured his shoulder in October 2017. He further stated that he cannot return to Lebanon because of medical reasons and that he requires treatment for his shoulder which he has already started. The applicant provided a medical report (MRI) from his doctor for his left shoulder indicating that he has a degenerative condition of his left shoulder (TF folio 55). The applicant said the doctor told him his shoulder condition was due to old age. The applicant told the Tribunal that his son supports him and takes him to hydrotherapy and physiotherapy. The applicant told the Tribunal that he cannot receive the same type of treatment for his shoulder in Lebanon. The Tribunal accepts that the applicant’s son is currently caring for and supporting him with his health issues in Australia. There is no evidence before the Tribunal that the applicant could not receive similar health care and treatment overseas for his medical condition if he had to return to Lebanon. The Tribunal on considering the evidence is not convinced the applicant’s medical condition constitutes compelling reasons for not applying the Schedule 3 criteria.
The applicant’s daughter- in-law (DIL) wrote to the Tribunal post the review hearing on 24 September 2018 stating that she was acting on behalf of the applicant and the family providing reasons why the applicant should be granted his visa to stay in Australia. The Tribunal has considered her correspondence in determining whether compelling reasons exist for not applying the Schedule 3 criteria. The applicant’s DIL states that the applicant has been in Australia for approximately a decade and is still fighting for his permanent residence in Australia. She further states that the applicant was in a loving and committed relationship with the sponsor until her illness. The applicant’s DIL provided little corroborative evidence to demonstrate the type or degree of support the applicant provided to the sponsor during the relationship or during the sponsor’s illness. The DIL also states that the sponsor’s behaviour changed after her illness and on the information provided to her the applicant [suffered] from severe anxiety, depression and sadness. Eventually the applicant’s son travelled to Sydney and convinced the applicant to move to Melbourne to live with their family. The applicant’s DIL further states that the applicant’s behaviour has improved and progressed significantly since moving to Melbourne. While there is a long way to go by way of treatment, they are confident the applicant will become himself again.
The Tribunal accepts that the applicant has been living in Australia for over a decade albeit for a significant period unlawfully, and was validly married to the sponsor in 2013. As the Tribunal previously determined it was not satisfied that the applicant was in a genuine and continuing spousal relationship it places little weight on her statement. Nonetheless, the Tribunal considers that being in a genuine and committed relationship forms the basis of all partner visa applications and does not consider this a compelling reason to waive the Schedule 3 requirements. [Information deleted]. The applicant provided a copy of the following documents (among others) in relation to his [health]:
·Statutory declaration from treating psychologist dated 17 February 2017;
·Psychological evaluation dated 20 February 2017;
·Medical certificate from applicant’s doctor dated 25 February 2017; and
·Statutory declaration from social worker/counsellor dated 1 March 2017;
The Tribunal queried the applicant as to whether he was receiving any [ongoing treatment]. The applicant responded that he had seen someone in Sydney and had not seen anyone since moving to Melbourne to live with his son. He further stated that his children are offering him advice and they do not want to send him to a psychologist. The Tribunal accepts that the applicant has been treated for anxiety and [stress] some nine months after the refusal of his visa and he has not sought further treatment since March 2017 which raises concerns with the Tribunal as to the severity of his condition. The Tribunal is of the view based on the evidence provided that the applicant’s medical condition appears to have transpired after receiving notification of his visa refusal on 30 May 2016. The Tribunal is not satisfied the correspondence of the specialists that has been submitted by the applicant contains compelling reasons to waive the Schedule 3 criteria. The Tribunal accepts that the applicant would prefer to remain in Australia for treatment for his medical condition with the support of his family.
The applicant’s DIL also submits that if the applicant had to return to Lebanon this would have an impact on the applicant’s quality of life and debilitate him and also have an emotional impact on their family living in Australia. She further states that the applicant wants to remain in Australia to be with his grandchild and to attend the marriage of his daughter who is coming to Australia on a prospective marriage visa. The DIL provided a copy of the visa approval granted to the applicant’s daughter on 13 September 2018. The Tribunal accepts that the applicant would prefer to remain in Australia with his family and to attend his daughter’s wedding. The Tribunal accepts that the applicant’s quality of life may be impacted if he returned to Lebanon and there would be a degree of anxiety and emotional stress for all concerned. The Tribunal does not consider the anxiety and stress potentially generated requiring a possible future offshore visa application represents a compelling reason for a waiver of the Schedule 3 requirements.
The applicant’s DIL further stated that the applicant may require surgery for his shoulder injury and will require full-time care. There is little corroborative evidence before the Tribunal to substantiate that the applicant will require full-time care if he does have surgery. The Tribunal does not consider that the applicant may have surgery in the future and that he will require full-time care as a result of surgery compelling reasons to waive the Schedule 3 requirements.
The applicant’s DIL also submits that the applicant has acclimatised to the Australian way of life, is a model and law-abiding citizen with a loving family supporting him, and wants to be in Australia with them for the rest of his life. The Tribunal accepts the applicant is used to the Australian way of life and would like to remain in Australia with his family. The Tribunal considers that being a law-abiding citizen a prerequisite when applying for a partner visa and does not consider it a compelling reason to waive the Schedule 3 requirements.
The Tribunal has considered the totality of the applicant’s circumstances. Having considered the circumstances singularly and cumulatively, 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).
There is no evidence that the applicant meets any of the alternative criteria in cl.820.211(5)-(9), that is people entering Australia to marry and who subsequently married, and the exceptions based on the death of the sponsor, family violence and the birth of a child.
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Russell Matheson
Member

ATTACHMENT - Extract from Migration Regulations 1994
1.15A   Spouse
(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.
(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i)     any joint ownership of real estate or other major assets; and
(ii)     any joint liabilities; and
(iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)    whether one person in the relationship owes any legal obligation in respect of the other; and
(v)     the basis of any sharing of day to day household expenses; and
(b)the nature of the household, including:
(i)     any joint responsibility for the care and support of children; and
(ii)     the living arrangements of the persons; and
(iii)     any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i)     whether the persons represent themselves to other people as being married to each other; and
(ii)     the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)     any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)     the duration of the relationship; and
(ii)     the length of time during which the persons have lived together; and
(iii)     the degree of companionship and emotional support that the persons draw from each other; and
(iv)    whether the persons see the relationship as a long term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
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.

[2019] AATA 4214

24 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction