Dzolev (Migration)

Dzolev (Migration) [2020] AATA 1512 (16 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Risto Dzolev
CASE NUMBER:  1801310
HOME AFFAIRS REFERENCE(S):          CLF2013/303854
MEMBER:Meena Sripathy
DATE:16 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl.820.211 of Schedule 2 to the Regulations
·cl.820.221 of Schedule 2 to the Regulations; and
·r.2.03A of Schedule 2 to the Regulations.

Statement made on 16 January 2020 at 4:22pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remittal – genuine de facto relationship – period of separation – lived separately but continued to see each other – financial and emotional support – Schedule 3 criteria – application lodged outside of relevant timeframe – compelling reasons for waiver – long standing relationship of eight years duration – sponsor’s ongoing health issues and need for continued support – character issues not yet considered – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A; Schedule 2, cls 820.211, 820.221; Schedule 3, Criterion 3001
CASES
Babicci v MIMIA (2005) 141 FCR 285
He v MIBP [2017] FCAFC 206
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection 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 6 December 2013 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). 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(2)(a) because the delegate was not satisfied the applicant was the de facto partner of the sponsor at time of application. In addition the delegate considered cl.820.211(2)(d)(ii) and found Schedule 3 criterion 3001 was not met and there were no compelling reasons for not applying those criteria. The applicant appealed the decision to the Administrative Appeals Tribunal (AAT).
On 11 May 2017 the AAT (differently constituted) dismissed the application for non appearance at a hearing scheduled on that date. On 26 May 2017 the Tribunal confirmed the decision to dismiss the application. The applicant sought review of this decision to the Federal Circuit Court.
On 15 January 2018 the Federal Circuit Court of Australia ordered the matter to be remitted to the AAT for reconsideration according to law. The Minister conceded that the Tribunal failed to consider evidence substantiating the applicant’s claims for why the Tribunal was unable to contact him at the time of the hearing.
The matter has been constituted to the present Tribunal for reconsideration.
The issue in the present case is whether the applicant and his sponsoring spouse are in a spouse or de facto relationship. Another issue arising in the matter is whether the applicant meets Schedule 3 criteria, or if not, whether those criteria should be waived.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
The applicant is a 43 year old Macedonian man. He has a mother and a 24 year old daughter in Macedonia and one brother who resides in Italy. He is sponsored by Mary Zulumovski, who is 51 years old and an Australian born citizen. Her only declared family are her parents, who reside in Australia. The parties claim to have met on 16 October 2011 and commenced a de facto relationship in December 2011. The applicant declares two previous marriages, to Viktorija Pereska from 1993 to 2003, from which one child was born; and Liljana Mosarevski from 2006 to August 2011 from which there are no children. The sponsor declares one previous marriage, from 1994 to 1997 with Goce Petreski from which no children were born.
The applicant previously lodged a Partner visa application in June 2009, sponsored by his former wife Liljana Mosarevski. That relationship ceased and he claimed family violence. He later withdrew that application.
Before the Department, the following evidence in support of the application was provided:
·Three completed Form 888 declarations from James Kazzi, Erica Catley and Vesna Pone;
·Photographs;
·Facebook posts from Dec 2011 to November 2013;
·Statutory Declarations from the applicant and sponsor dated November 2013;
·A further Statutory Declaration by applicant dated May 2016;
·Letters and reports relating to the sponsor’s health;
·Applicant PAYG statement dated 1 July 2011;
·Bank correspondence including statements;
·Other correspondence addressed to the applicant and sponsor at the same address.
In their respective Statutory Declarations dated November 2013, the applicant and sponsor provided information that they met at the sponsor’s birthday party in October 2011. They exchanged details and caught up again for coffee, drinks and dinner. In December 2011 they decided to move in together. They lived together at several addresses after that, and continue to live together as at the date of the declaration. They spent Christmas together in 2011 and took a family holiday together in January 2012. In October 2012 they purchased a coffee shop business together in Newtown, where they spend a lot of time together. The applicant proposed marriage to the sponsor but they cannot marry until her divorce is finalised. They plan to enter another business venture in future.
The medical evidence submitted relates to the sponsor’s cancer diagnosis, treatment, including surgery, in or around October 2015.
On 27 January 2016, the Department received an email from the representative advising that the sponsor advised the relationship had broken down and, due to lack of contact from the applicant and conflict of interest, the representative was now only acting for the sponsor.
Subsequently, the applicant claimed he had reconciled with the sponsor and further material was submitted. In a Statutory Declaration by the applicant dated May 2016, he states he cannot return to Macedonia to lodge an offshore application because it would be difficult emotionally to be apart from the sponsor and financially difficult after all the medial expenses. He refers to the support he gives her during her cancer treatment, including driving her to appointments and emotional support he gave her prior to her operation and post-operative care.
The applicant’s claims relating to the compelling reasons for not applying the Schedule 3 criteria were provided in a submission from his representative dated 19 May 2016, stating the following: the circumstances in which he ceased being the holder of a substantive visa were outside his control as he was the victim of family violence in his previous relationship; he and the sponsor in the present application have been in a genuine and ongoing relationship since December 2011; they were trying for a child and underwent fertility treatment until the sponsor was diagnosed with cancer in October 2015; the impact of her diagnosis and treatment on the couple has been significant and the couple struggled to deal with the pressures of the chemotherapy and surgery. The sponsor relied on the applicant to drive her to treatments. As a result of the pressures and emotional strain and psychological pressures on the sponsor, the couple had to take some time apart. It was submitted that the separation was only temporary and they resumed their relationship. It was submitted that the applicant provides the sponsor emotional, practical and financial support.
The Tribunal notes the delegate’s decision record refers to a further notification from the representative on 9 June 2016 that the relationship had ceased, however this correspondence does not appear on the Department file CLF2013/303854.
The delegate refused the application on 27 June 2016, noting the representative’s notification of the cessation of the relationship again in June 2016 and that there was no evidence in support of the ongoing relationship since that time.
Evidence before the first Tribunal
The applicant applied for review of the decision to refuse the application to the first AAT on 15 July 2016. On 7 March 2017 he was invited to attend a hearing on 5 April 2017 to give evidence and present arguments relating to the issues arising in his case. On 20 March 2017 the applicant’s (new) representative informed the Tribunal that the applicant is in Long Bay gaol having been arrested on various charges relating to the supply of drugs. He advised his representative that he had pleaded guilty to a number of charges and was remanded for sentencing on a date to be fixed. The representative sought a postponement of the hearing on this basis. The matter was postponed to 11 May 2017.
The applicant failed to appear at this hearing and the Tribunal dismissed the application. On 26 May 2017 the dismissal was confirmed.
Evidence before the present Tribunal
On 20 August 2019 the Tribunal received a submission from the applicant’s (new) representative, providing the following updated information:
·The applicant was granted a Bridging visa E on 24 May 2019 to maintain his lawful immigration status while he is in criminal detention.
·On 3 August 2018 Judge Zahra SC made orders sentencing the applicant to a full term of imprisonment of three years and four months and a non-parole period of two years, in respect of one count relating to supply of drugs and full term imprisonment of five years and three months and a non- parole period of three years and five months in respect of a second count relating to supply of drugs. He will be eligible for release on parole on 28 November 2020.
·Evidence relating to the sponsor’s medical history.
·Submissions on schedule 3 waiver: relying on the sponsor’s significant health issues and the long term partner relationship.
Statements and support letters from the following individuals were provided in support of the applicant’s case and who state their opinion that the applicant and sponsor are, and continue to be, in a genuine and ongoing relationship:
·Mr Serafim Stoilov – friend of the applicant’s since they were teenagers in Strumica Macedonia and known to both parties as a couple.
·Mr Robert Bogdanovski – friend of the sponsor since they were teenagers and known to the applicant since 2008 and aware that the sponsor has been visiting the applicant while he has been in gaol.
·Mr Michael Volanakis – close friends of the parties since 2015, socialised with them as a couple, and aware that the sponsor has been visiting the applicant while he has been in gaol.
·Todorka Kocev – friend of the sponsor since 1990 and the applicant since 2008.
·Mr Justin Hatfield – known to the parties, socialised with them as a couple, and aware that the sponsor has been visiting the applicant while he has been in gaol.
·Vera Pajakovski – friend of the sponsor who hosted the birthday party where the couple first met. Has socialised with them as a couple, and aware of the applicant’s current circumstances, and the sponsor’s ongoing support of him.
·Meri Dimitrioska – long term friends of the couple and has socialised with them, aware of the applicant’s current circumstances and knows the sponsor continues to support and visit him. The writer also expresses concern for the applicant’s safety if he were to be required to return to Macedonia due to his previous work background and the sponsor’s ability to cope there.
·Mr Joe Asmar – work colleague of the sponsor, who met the applicant when he attended staff parties with her, and he often saw the applicant at the workplace and attests to them being in a genuine and loving relationship.
·Letter from Michael Korn of Korn MacDougall Legal, who represented the applicant in his criminal proceedings supporting the role played by the sponsor during the course of the legal proceedings and evidence put before the court in that matter relating to the relationship.
·Letter from Lauren MacDougall of Korn MacDougall Legal, who represented the applicant in his criminal proceedings, confirming that the sponsor, Mary Zulumovski paid all of Mr Dzolev’s legal costs since his arrest and he instructed them to appoint Ms Zulumovski as his attorney while incarcerated.
·Ms Viktorija Pereska-Dzoleva – ex wife of the applicant, residing in Struga Macedonia who knows of and supports the applicant and sponsor’s relationship. The writer also provides detailed information about the applicant’s past work in Macedonia and expresses concerns for his safety if he were to return.
·Dushan Milanovich – friend of the applicant since 2008 and knows and attests to the genuine relationship between the applicant and sponsor. Also makes reference to concerns for the applicant were he to return to Macedonia due to his past work history there.
·Mr Mirko Golib – friend of the applicant and sponsor for over 8 years who has witnessed their close and committed bond when he has been in their company on numerous occasions over the years. He is aware of the applicant’s incarceration and has visited him with the sponsor and has no doubts that they continue to be in a genuine relationship with each other.
·Mr Kannon Rajah – friend of the applicant since 2015 and sponsor since 2016, who has attended their home, and go out with them, for meals. He attests to their genuine relationship on the basis of his observations of them in this context. He is also aware of the applicant’s circumstances of being arrested, and attended the sentencing with the sponsor. He has visited the applicant in gaol with the sponsor.
·Mr Paul Da Silva – strawberry grower from Western Australia, who knows the sponsor for 15 years and considers her a close and personal friend. He is aware of the sponsor’s health issues and the applicant’s incarceration. The sponsor is a vital part of the writer’s survival in his industry and he relies on her to guide him through each season. He attests to the genuineness of the applicant and sponsor’s relationship which has been ongoing for nearly 8 years and if the applicant is deported and the sponsor leaves with him, he will suffer a fatal blow to his business.
·Mr Stephen Moraitis- Executive Director of MorCo companies for which the sponsor has worked for over 12 years. He knows her for over 15 years and she is like family to him. He is aware of the relationship between the applicant and sponsor since 2011 and has met the applicant on a number of occasions and observed their interactions. He is aware of the applicant’s convictions and provided a support letter in the context of his sentencing, pledging to employ him on release. He attests to their ongoing commitment and relationship even while the applicant has been incarcerated. The writer refers to the sponsor’s integral role in his business and the hardship it would cause his business and the berry industry if she were to leave with the applicant which she has indicated to him she would do.
A letter from the sponsor, Mary Zulumovski, dated 2 November 2019 was also provided in support of the application. Ms Zulumovski states she has been in a relationship with the applicant since December 2011 and is more emotionally invested now than ever before. She expresses her fears and frustrations regarding the applicant’s incarceration and visa process and the support provided to her by the applicant over the years.
Tribunal hearing 6 November 2019
The applicant appeared before the Tribunal by video link on 6 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. A significant number of the above mentioned people who had provided witness statements, attended to give evidence, however the Tribunal did not consider it necessary to take oral evidence from any of them. The Tribunal hearing was conducted with the assistance of an interpreter in the Macedonian and English languages. The applicant was represented in relation to the review by his registered migration agent who was present in person.
The applicant confirmed he is presently incarcerated at Mannus Correctional Facility, which is a low security ‘working camp’. He was sentenced on two counts of supplying drugs and his earliest release date is 28 November 2020. He has been in custody since his arrest on 29 September 2016, having had bail refused. He was initially at Silverwater Gaol for 4 months, then Long Bay on remand for one and a half years. After being sentenced he went to Goulburn Gaol for 4 months and then was transferred to the present facility. He was transferred to Mannus on the basis of good behaviour as it is considered a work release gaol. He has made an application for C3 classification which is pending. If granted he would be eligible for work release in the community and possibly home detention in the last 6 months of his sentence.
The Tribunal asked about the sponsor’s circumstances. He stated her address and that she owns this property and lives there alone. She has been at the same address since he met her. She works at Flemington Markets for a company called MorCo Fresh. She works 5 days a week, and sometimes on Saturday and Sunday. She works from around midnight or 1am to 8 or 9 am. After she comes home she is on the phone for several hours with growers and shop owners until around lunch time and then rests. He can use the phone from 8am to about 4pm and makes at least 3 calls to her during the day.
Regarding her health situation, she had breast cancer, then surgery and radiation therapy and is all good now but has had lymph nodes removed under her left arm. She now goes to Macquarie University for control massage therapy and wears a sleeve. She still needs to have reconstruction surgery on her breast but plans to wait until he is out of gaol for that.
Regarding support available to her, she has a mother in Newcastle but she is elderly and the sponsor does not rely on her. Since he has been incarcerated, the sponsor has mostly been on her own through all of this, although she has friends. She has worked throughout her illness, but work has been supportive. Recently she took some weeks off for hernia surgery, she was off work for one month.
The Tribunal asked about his migration history. He came to Australia on 31 October 2008 to marry Lily but that relationship did not work out. In 2011 he met the sponsor at a mutual friend’s house (Vera). He came with his ex-partner Lily. Their relationship was already at the end by that stage and 3 days after that party he left her. He sent a friend request to the sponsor on Facebook and they started chatting and talked about past relationships. They went out for dinner and things developed from there.
They started living together soon after. She had to move out of her apartment due to water damage and moved into Hotel Pullman. He moved from living with Lily to living with the sponsor. At this stage he was thinking he had to return to his country but the sponsor convinced him to stay. They went together to see a lawyer to discuss it. The sponsor was in charge of the lawyer so all the communication about the case was through her.

The applicant gave his address history from 2011 to 2013 at various hotels and then a building neighbouring the sponsor’s apartment. After that they moved back into her apartment. He was working at Marco Polo Foods. He said the sponsor changed everything for him. Before meeting her he was only mixing in the Macedonian community and spoke little English.
In 2015 they had a brief period of separation. They had arguments, mostly about lifestyle. In this period they had bought a shop/café together and he was working there. He put in $55,000 and she borrowed around $60,000 from her mother. They sold the business in 2014 because of a change in migration laws which meant he no longer had permission to work. After that he lived off the proceeds of the sale of the business.
Regarding their financial arrangements, they had a joint account since 2011 and also their own accounts. She banked with NAB. They each deposited funds into the joint account and paid for shopping and bills out of that account. He used the proceeds of sale from the business to live off after 2014. However in 2015 he started drinking and going out and generally not behaving well. Around September or October 2015 she asked him to move out and he moved to an apartment in the city on Kent St. The rent was $800 and she helped him out financially, giving him $50,000. They continued to see each other every day after that. She wanted him to come back to him. She often stayed with him and he would stay with her. They continued like that until September 2016 when he was arrested and charged and taken into custody. Since then they have lived separately.
The Tribunal asked about the sponsor’s health situation. She was diagnosed with cancer in 2015, while they were living together. When she went to hospital for her surgery he visited her everyday. She did not take the diagnosis well and went ‘crazy’. About 2-3 weeks before her surgery she asked him to leave, but despite this he was present with her every day when she was at hospital. After that she begged him to come back but he was stubborn and proud and refused. He described the relationship between them at this time as toxic. They were both very up and down in mood. In September 2016 he was caught by police and charged with supplying cocaine. The sponsor had no idea about what he was doing. She was shocked by the arrest but she supported him. She found him a lawyer and visited him throughout the period he was in gaol in Sydney. She gave him financial support throughout this period, depositing money into his prison account and paying for all the lawyers.
The Tribunal asked who supported the sponsor through her health issues. She has a mum in Newcastle. She has no living siblings. Her brother died at age 26. She has two uncles, brothers of her father, in Newcastle. She also has an uncle, brother of her mother, but she is not as close to him. The applicant has met her uncles. The two in Newcastle live close to her mother. The sponsor is also in contact with his family, including his daughter and mother in Macedonia and his ex wife also.
The Tribunal asked the applicant what they have discussed about the future. They will stay together no matter what. They fight but they love each other. They have talked about where they might live if he cannot stay here. He thinks he could go to Italy where he has a brother. He doesn’t think he can return to Macedonia because it would be difficult for her to live there.
The Tribunal asked the applicant what he wants the Tribunal to consider as compelling in his case. He said he has been through a lot and so has the sponsor. She is very strong but she has no one else in her life but him to talk to. They are very close and she will come with him wherever he has to go. Regarding his convictions, he said everyone makes mistakes and he has done so. However he has made good progress while in gaol and is hoping to get an early release. He was in a bad place and with bad people when he made his mistakes and he is not proud of himself. The sponsor’s life is here and her work is here so it will be very hard for her if she has to go overseas. The applicant believes his C3 application for work release is pending this migration application issue. It may be dependent on whether he is considered a deportee or a resident of Australia as to whether he is eligible for work release.
The sponsor visited him regularly before he came to the present facility, but only 5-6 times since then because of the distance and her work commitments.
The Tribunal took evidence from Mary Zulumovski in person. She confirmed her current address and that she has lived there since 2005 and owned it since 2009. She confirmed her work, work history and hours. She has worked in the same industry since 1994 and since 2008 with the present employer. She works from 1am to 8 am on the trading floor of the markets at Flemington and is on call all the time. She goes in to work between 1am and 3am and comes home between 9.30am and 10.30am. She then eventually collapses and sleeps until around 11pm. She communicates with the applicant 5-6 times during the day and they share about each other’s day and family and friends.
She gave details about her health circumstances. She has lymphedema relating to her left breast and arm and attends a clinic at Macquarie Hospital and Rhodes 2 or 3 times a week. She goes alone or a friend drives her. Her last surgery was at the end of July, for hernia as a result of the radiation therapy. She was in hospital for 6 or 7 days. She said the whole period was a blur and she barely coped. She went to her lawyer’s office in her pyjamas. She went to her doctor but he just wanted to put her on medication which she did not want. She hasn’t seen a counsellor, apart from a forensic psychologist in 2017 who diagnosed her with PTSD. That was independent of the applicant’s situation. She doesn’t believe any report was written about it at the time. This doctor has since been de registered.
Her family is in Newcastle. She has her mum, and two uncles and their families. She also has a maternal uncle in Mascot but she doesn’t see him much. The applicant has met her paternal uncles. She is closer to her father’s side of the family. The sponsor is familiar with the applicant’s family including his daughter, ex wife and mother. She contributed to supporting his daughter through school and university.
The Tribunal asked her to recount the story of their relationship. They met at a party arranged for her in October 2011. He attended with his then wife. They were fighting or arguing. They started a relationship soon after and he moved in with her from 5 December 2012. She acknowledges that this was fats but they clicked. She knew his ex wife from the Macedonian community and she had heard she was not nice to him. When they met, the applicant was very supportive of her having recently lost her father.
After they started living together Lily made threats on Facebook and she took him to see a lawyer. Eventually he withdrew his application. The sponsor said they just followed the agents’ advice. In 2014 she told them about changes to migration law which meant he no longer had work rights so they sold the business.
The sponsor said it was her idea for him not to go offshore to lodge the visa because she needed him here. He was an emotional crutch for her.
Regarding their living arrangement, he moved in with her when she moved out of her apartment into a hotel due to flood damage. Eventually they moved back into her apartment. She was the only name on the lease in the place they rented and utilities were only in her name, this is because it was easier to do it that way and she had always had it in her name. Regarding financial arrangements, she paid rent and he paid for food. Utilities were included in rent. They had a joint account and their own accounts. She did not want to take his money. She put money into the joint account and used it for shopping and living expenses. He wasn’t working at the time. They bought the business together, she put in $50,000 borrowed from her mother and he put in $25,000-$30,000 from his savings for capital and equipment. They sold the business in February 2014 and he lived off the proceeds.
The Tribunal put to her that the applicant’s evidence about the amounts put into the business and sale price was not consistent with hers. She said he is not very good with numbers and dates.
They lived together until her diagnosis by GP in late September 2015. She saw a specialist on 16 October 2015. The applicant was with her when she saw the GP and he mentioned the cancer but not with her when she went to the specialist who confirmed it. She did not want anyone with her. She reacted badly and kicked the applicant out of her house. She did not have the right coping mechanisms. She had seen her dad go through cancer and did not want him to pity her. She knows now it was a mistake. When asked by the Tribunal if there was any other reason she kicked the applicant out in this period she said he also wasn’t coping well with the news and told her he was abusing substances, drinking and using cocaine. This was against all her values and so she told him to leave. She asked her friend Walker to find him somewhere to live. He lived at an apartment in Kent St and then later in Woolloomooloo. She gave Walter $45,000 to pay his rent. When asked why she paid for his rent she said she was the one who didn’t want him to see her like that. He came with her to radiation and to hospital at the time of surgery. She didn’t want her mother to come and see her either.
The sponsor acknowledged that she told the Department the relationship had broken down. At the time she thought it was the right thing to do. She didn’t really understand the consequences. The lawyer was more sympathetic to her health situation and had limited contact with them. They had reconciled but were not living together. In the meantime he had got himself into a mess with the police. She takes responsibility for this.
She repeated that she was really struggling at this time and not coping well. She never emotionally disconnected from him but mentally she had to.
The Tribunal asked when she knew about the charges. She said she was contacted by his friend and told he was arrested. She arranged a lawyer for him and visited him at Silverwater gaol. She regularly visited him at Long Bay and once a week at Goulburn but can’t go regularly to Mannus because of the distance and her bad arm. She shares driving with friends who come with her. They communicate regularly by phone, he calls her because she is not allowed to call him.
They have discussed the future in that they will be together. They have people willing to help them like the Moriatis family. They don’t discuss leaving Australia because she finds it overwhelming and daunting and gets upset. When put to her that he has mentioned discussions about possible places, she said she knows he wants to go to Italy but she doesn’t want to discuss it. She cannot just go there, she has her mother here and her growers. She knows nothing about living outside Australia. She has no desire to live in Macedonia, having last visited in 1981.
Regarding whether they were living together in period 2015 to 2016, she said they spent time together at each other’s addresses. He had a lease at Woolloomooloo and she liked staying there also. When he was arrested she had to pay out the lease.
The Tribunal asked what compelling reasons she wants to put forward in his case for not applying the Schedule 3 criteria. She said she gets comfort just from him being here even if he is in gaol. She can come and see him here. If he goes overseas she cannot see him because of her commitments here. She is hoping he is released soon on home detention. She is delaying corrective surgery she needs to have until he is released and can care for her. She is not sure how long she can keep doing this. She feels guilty that he is in this situation because she kicked him out.
The Tribunal invited the applicant to respond to the sponsor’s evidence, and in particular the matters in which she gave different evidence to him, specifically relating to their respective contributions to purchase the business. He said he had some money and she borrowed money from her mother but he cannot recall exactly who put in what. Regarding the reasons for him moving out in 2015, he said that it all happened, he was behaving poorly and she was having a hard time over her diagnosis. It was for all of those reasons together.
The Tribunal invited the representative to make submissions. He will make further written submissions. However, in brief he pointed out that the parties did not give inconsistent evidence, rather their evidence reflected different perspectives on same set of facts. They each blame themselves for the situation. It was a volatile relationship but despite that they spent time together and there was always continuity of the relationship. Despite being rocky it was ongoing and continues on. They both share the view that it is not over and therefore they are not living separately and apart even now. It is acknowledged that the drug offences are an unfortunate circumstance that has prevented them from living together but he is doing his time for that now. It is submitted that there is sufficient evidence of a genuine relationship. The sponsor has delayed necessary medical treatment for the physical support of her partner. He provides her emotional, physical support. She needs him to support her. They have not discussed the practicalities of living together overseas. All this must be weighed against his conduct in Australia. The Tribunal has an unfettered discretion in determining whether there are compelling reasons. The representative requested a period of four weeks to submit further material.
On 3 December 2019 the Tribunal received the following documents from the representative. The representative sought an extension of a further four weeks to receive the documents requested from the Department of Corrective Services.
·Judge Zahra’s reasons for sentence, dated 3 August 2018, in respect of the applicant’s conviction.
·Copy of Affidavits from the applicant (dated 4 April 2017) and Ms Zulumovski (dated 26 January 2017) tendered to the District Court in relation to the sentencing proceedings.
·Copy of a completed Right to Information (GIPA) request for information about the applicant period in custody, including information regarding visit records and applications for classification and work release
·Evidence of the applicant’s purchase of Astino’s Caffe and Restaurant.
·Letter from Mr Kannon Rajah dated 21 November 2019, citing further concerns for the sponsor’s welfare following the Tribunal hearing.
CONSIDERATION
As indicated above, the delegate was not satisfied on the evidence provided that the applicant was the de facto partner of the sponsor and therefore he did not meet cl.820.211(2) at time of application. In addition the delegate considered cl.820.211(2)(d)(ii) and found Schedule 3 criterion 3001 was not met and there were no compelling reasons for not applying those criteria. Consequently, these are the issues in dispute in this review.
The Tribunal has considered all of the evidence now before it, including documentary evidence provided to the Department, and oral and documentary evidence and submissions provided to the present Tribunal covering the circumstances of the relationship and compelling reasons arguments, and documents relating to the applicant’s criminal proceedings as they relate to, and support, the applicant and sponsor’s relationship. In reaching its conclusions in this review, the Tribunal is conscious of the history of the application and substantial passage of time. It is now six years since the application was made, and in that time there have been substantial events affecting both the applicant and sponsor and their relationship. The Tribunal has taken all of this into account and the substantial amount of further evidence in support of the existence of an ongoing relationship and compelling reasons for not applying the Schedule 3 criteria.
Taking into careful consideration all of the above, the Tribunal finds the weight of evidence supports a conclusion the applicant and sponsor were at time of application, and continue to be at time of decision, in a genuine de facto relationship. It also concludes that there are compelling reasons not to apply the Schedule 3 criteria in this case.
The Tribunal’s analysis of the evidence and reasons for decision follow.
Whether the parties are in a spouse or de facto relationship
Clause 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 de facto partner of the sponsor who is an Australian citizen.
Are the parties in a de facto relationship?
'De facto partner' is defined in 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).
In forming an opinion whether they are in a de facto relationship consideration must be given 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.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206. The Tribunal has carefully considered the evidence before it relating to the matters set out in r.1.09A(3).
The Tribunal accepts on the evidence that the applicant and sponsor met in October 2011 and commenced a relationship soon after. It accepts they started living together from December 2011 and lived together until around September or October 2015 when the sponsor asked the applicant to move out in the context of her distress about a recent health diagnosis. On the basis of their consistent evidence, it accepts that they had a period of separation around this time, for which they each take self blame. The Tribunal accepts it was a difficult time for the sponsor, as she coped with her cancer diagnosis and treatment. It accepts, on their consistent evidence, that even though they lived separately they continued to see each other. The Tribunal accepts that the sponsor financially supported the applicant by arranging and paying for his separate accommodation in this period, and the applicant supported the sponsor by accompanying her at hospital and providing emotional support through her cancer treatment. They gave consistent evidence that they continued seeing each other throughout this period even though they were not living at the same address.
In September 2016 the applicant was taken into custody on criminal charges and has been incarcerated since that time. Therefore, on the evidence before it, the Tribunal finds the parties lived together at the same address from December 2011 to around September 2015 and have not lived together since that time. However, notwithstanding that they have not lived together since then and until now, having regard to other evidence of the circumstances of their relationship it accepts that they were not, and are not, living separately and apart on a permanent basis. The Tribunal accepts that the sponsor has been consistently and regularly visiting the applicant throughout the period of his incarceration, and that the parties maintained contact and their relationship while living separately prior to that as well.

The Tribunal accepts that the applicant and sponsor have continued to support each other financially throughout this period, or pool their resources when they have each had resources to pool. For example, they established and maintained a joint bank account, into which each deposited funds and paid bills. They bought a business together and shared the proceeds of sale. She contributed to his living costs when she asked him to move out of her home. She has provided financial support to him since he has been incarcerated including arranging and paying for his legal representation, and giving him funds for use while in gaol. On the basis of the evidence the financial aspects of the relationship support the existence of a genuine and ongoing relationship.
The evidence of the social aspects of the relationship also strongly supports the existence of a genuine and ongoing relationship. The applicant and sponsor have met each other’s family. They gave consistent evidence that he has met her mother and uncles. Evidence is also before the Tribunal confirming the sponsor’s contact with his ex-wife and daughter. The Tribunal accepts that the sponsor has contributed to the support of the applicant’s daughter’s education. A substantial number of supporting statements from friends and acquaintances has been provided attesting to knowing the parties as a couple and the genuineness of their relationship.
The applicant and sponsor have been together now for over 8 years. They have been through significant events in each other’s lives, including the sponsor’s adverse health issues and the applicant’s conviction and incarceration. They have stuck by each other through these challenges and provided each other support. They each indicated without hesitation or doubt, a desire to stay together wherever that may be in future. The Tribunal has considered, and gives weight to, the support provided by the sponsor to the applicant during his incarceration and evidence she gave at his sentencing hearing. Specifically, she has provided substantial financial, practical and emotional support to him and declared her past and ongoing support of the existence of a relationship between them throughout the relevant period. The Tribunal accepts that they have demonstrated a commitment to the relationship and that they each see it as long term.
Ultimately, considering all of the evidence and circumstances of the relationship over the past 8 years and the applicant and sponsor’s documentary and oral evidence given both to the Tribunal and the District Court in the context of his criminal proceedings, the Tribunal accepts that their relationship has not been entirely conventional or straightforward. At times it has been volatile or as the applicant himself described ‘toxic’. However, considering the evidence and the circumstances holistically, the Tribunal is satisfied that the applicant and sponsor were at time of application, and are now in a genuine and continuing relationship; they have a mutual commitment to shared life to the exclusion of others; and although they are not currently living together, it accepts that they are not living separately and apart on a permanent basis.
On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time the visa application was made and at the time of this decision.
Therefore the applicant meets cl.820.211(2)(a) and cl.820.221(1)(a).
Are the additional criteria for a de facto relationship met?
Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. Both members of the couple must be at least 18 years old: r.2.03A(2). The Tribunal accepts that the applicant and the sponsor meet this requirement. Additionally, the applicant must have been in the de facto relationship for at least the 12 month period ending immediately before the date of the application: r.2.03A(3) (unless they come within certain limited circumstances, not here relevant). In the present case, the Tribunal accepts on the evidence before it that the applicant and sponsor were living together in a genuine de facto relationship since December 2011 and therefore, is satisfied that the applicant had been in the de facto relationship for more than 12 months before the date of the application.
Therefore the applicant meets the additional criteria in r.2.03A.
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 in the present case that the applicant did not have a substantive visa at the time of application. As he 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.
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). In the present case the applicant’s last substantive visa (subclass 300) ceased on 23 June 2009. The present application was not made until 6 December 2013.
As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.
Compelling reasons
As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is required to consider whether there are compelling reasons for not applying the criteria.
The expression ‘compelling reasons’ is not defined for these purposes. However, 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.
At the time of consideration of this issue by the delegate in April 2016, the applicant relied on the circumstances that led to him not holding a substantive visa being the breakdown of his previous relationship for reasons of family violence; that he and the sponsor were trying for a child through IVF and that she was undergoing treatment for cancer and needed his support. Since that time, much has changed in the applicant’s and sponsor’s circumstances. As provided by the case law, the circumstances which may constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time up to, and including time of decision.
Before the Tribunal the applicant relies on his now long standing relationship of eight years duration. The sponsor referred to her significant emotional investment in the applicant and the relationship to date and the substantial barriers for her to leave Australia to be with him. Supporting evidence relating to the sponsor’s ties to Australia, particularly her elderly mother and her longstanding and established career, as well as language and visa barriers and ongoing health issues were put before the Tribunal.
The Tribunal accepts the applicant and sponsor are in a genuine and ongoing de facto relationship and have been since 2011. It finds this is a relationship of long standing duration. Given this, and having regard to all of the circumstances and evidence now before it, and placing particular weight on the significant passage of time (more than five years since the application was made, and eight years since the relationship began), the applicant’s demonstrated past support of the sponsor through her cancer treatment and her ongoing health issues and need for future support, the Tribunal is sufficiently convinced in the present case to find there are compelling reasons to allow the application to proceed onshore by waiving the Schedule 3 criteria. In these circumstances, it would be unduly harsh and cause unjustifiable hardship for the parties to require the applicant to depart Australia and make a fresh application after all of this time, only for this reason.
In reaching this conclusion on the exercise of its discretion in the context of this criteria, the Tribunal is mindful that there are other requirements, including relating to character issues, which the applicant has yet to satisfy before the visa can be granted to him. It has formed the view that the character issues are not, however, relevant considerations in the context of the present review.
The Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, it finds the applicant meets cl.820.211(2)(d)(ii).
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.
DECISION
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl.820.211 of Schedule 2 to the Regulations; and
·cl.820.221 of Schedule 2 to the Regulations; and
·r. 2.03A of Schedule 2 to the Regulations.
Meena Sripathy
Member

ATTACHMENT - Extract from Migration Regulations 1994
1.09A     De facto partner and de facto relationship
(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.
Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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.

[2020] AATA 1512

16 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Natural Justice