Ellis (Migration)

[2024] AATA 3411

Ellis (Migration) [2024] AATA 3411 (26 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Leciel Caritero Ellis

REPRESENTATIVE:  Mr Jeffrey Peter Harvie (MARN: 0959797)

CASE NUMBER:  2101658

HOME AFFAIRS REFERENCE(S):          BCC2020/1412995

MEMBER:Cheryl Cartwright

DATE:26 August 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.221(4)(a) of Schedule 2 to the Regulations

·cl 820.221A of Schedule 2 to the Regulations

Statement made on 26 August 2024 at 4:10pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship approval – sponsor convicted of a ‘relevant offence’ – ‘significant criminal record’ – whether reasonable to approve – length of time since sponsor completed the sentence – best interests of the child – length of the relationship – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), rr 1.20KC, 1.20KD; Schedule 2, cls 820.221, 820.221A

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant applied for the visa on 22 April 2020 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. On 5 February 2021 the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.221(4)(a) and cl 820.221A because the sponsorship had not been approved by the Minister.

4. Upon reviewing submissions as well as further evidence that has been received, the Tribunal considered that, based on the material before it, a hearing was not required and that the review should be decided in the applicant’s favour pursuant to s 360(2)(a). The Tribunal cancelled the hearing that was scheduled for 27 August 2024.

5. The applicant was represented in relation to the review.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the sponsor meets the requirements of cl 820.221(4)(a) and cl 820.221A, which require that the sponsorship is approved by the Minister. The Minister’s delegate found that the sponsor had committed a significant offence under regulation 1.20KC, which provides a limitation on approval of sponsorship in partner visas. Reg 1.20KC(2) states:

   This regulation applies in relation to an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving any of the following matters:

   a)violence against a person, including (without limitation) murder, assault, sexual assault and the threat of violence;

   b)the harassment, molestation, intimidation or stalking of a person;

   c)the breach of an apprehended violence order, or similar order, issued under a law of a State, a territory or a foreign country;

   d)firearms or other dangerous weapons;

   e)people smuggling;

   f)human trafficking, slavery or slavery-like practices (including forced marriage), kidnapping or unlawful confinement;

   g)attempting to commit an offence involving any of the matters mentioned in paragraphs a) to f), or paragraph h);

   h)aiding, abetting, counselling or procuring the commission of an offence involving any of the matters mentioned in paragraphs a) to g).

8. Reg 1.20KC(3) states that the Minister must refuse to approve the sponsorship if:

   a)the sponsor has been convicted of a relevant offence or relevant offences; and

   b)the sponsor has a significant criminal record in relation to the relevant offence or relevant offences.

9. Reg 1.20KC(4) states that the Minister may decide to approve the sponsorship if the Minister considers it is reasonable to do so, having regard to matters including the following (without limitation):

   a)the length of time since the sponsor completed the sentence (or sentences) for the relevant offence or relevant offences;

   b)the best interests of the following:

   i.any children of the sponsor;

   ii.any children of the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned;

   c)the length of the relationship between the sponsor and the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned.

10. A National Police Certificate dated 24 March 2020 provides a list of disclosable court outcomes recorded against the name of the sponsor, including:

    producing dangerous drugs

    
    

    possession of dangerous drugs

    
    

    entering a dwelling with intent at night

    
    

    assault occasioning bodily harm

    
    

    wilful damage

    
    

    breach of domestic violence order

    
    

    possession of property suspected of having been used in connection with the commission of a drug offence

    
    

    unlawful wounding

    
    

    behaving in a disorderly manner

    
    

    driving while licence cancelled

    
    

    possession of a driver’s licence calculated to deceive

    
    

    providing a false name and address

    
    

    assault of police

    
    

    wilful and unlawful damage to property

    
    

    dangerous driving

    The offences were committed between 9 November 1983 and 9 November 2015. The sponsor spent a total of approximately three years in prison as a result of the offences.

    Is the applicant sponsored?

11. Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include 820.211(2)(a) which requires that the applicant is sponsored by an Australian citizen, an Australian permanent resident or a New Zealand citizen (as defined in reg 1.03 of the Regulations). The sponsor was born in Australia and, at the time of application, was over 18 years of age. The sponsor is an Australian citizen. A copy of his birth certificate is on the Department’s file.

12. At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl 820.221.

13. The Tribunal notes that, according to a statement provided by the applicant, the offences committed by the sponsor are known to the applicant.

14. Approval of sponsorship is subject to limitations contained in reg 1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship, and in reg 1.20KA which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. There are further limits imposed by reg 1.20KB in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010, and reg 1.20KC for sponsors convicted of a relevant offence who have a significant criminal record in relation to the relevant offence where the visa application was made on or after 18 November 2016.

15. As mentioned above, the sponsor has been convicted of a relevant offence and has a significant criminal record. He is therefore subject to the limits imposed by reg 1.20KC.

16. Clause 820.221(4)(a) requires that, at the time of decision, the sponsorship has been approved by the Minister.

17. As mentioned above reg 1.20KC of the Regulations provides that the sponsorship of each applicant for a Partner or Prospective Marriage visa must be refused if the sponsor has been convicted of a ‘relevant offence’ and has a ‘significant criminal record’ in relation to it. A ‘relevant offence’ is defined in reg 1.20KC(2) as an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving matters such as violence, harassment, breaches of apprehended violence orders, weapons, people smuggling, human trafficking, ancillary offences, and attempts to commit offences involving such matters. Regulation 1.20KD provides that a ‘significant criminal record’ includes being sentenced to death, life imprisonment, imprisonment of 12 or more months, or 2 or more terms of imprisonment totalling 12 months or more, in relation to a relevant offence or offences.

18. The sponsorship may nevertheless be approved if it is reasonable to do so, having regard to matters including the length of time since the sponsor completed the sentence, the best interests of any children of the sponsor or primary applicant, and the length of the relationship between the sponsor and the primary applicant: reg 1.20KC(4).

19. Approval of the sponsorship may also be refused if the Minister (or Tribunal on review) has requested a police check from the sponsor under reg 1.20KC(5) and the sponsor does not provide the police check within a reasonable time: reg 1.20KC(6).

    Evidence provided in regard to regulation 1.20KC(4)

20. In a statement dated 13 August the parties’ representative describes the sponsor as having been a ‘larrikin’, but also states that the sponsor’s life had changed since meeting the applicant more than eight years ago and he is now ‘a stable, mature family man’ who has ‘settled down into family life in a country town’. The offences were committed when the sponsor was 33 years old; he is now 59 years old and ‘a reformed character’.

21. In a statement dated 9 August 2024 the sponsor states that he had improved his life over the last two decades, he had begun a new life with the applicant, and he is committed to an ‘honest and loving’ relationship.

22. In a statement dated 9 August 2024 the applicant states that the parties purchased a home in August 2021 in Biloela, Queensland, moving there from Dirranbandi, and they have now lived in Biloela for three years. The Tribunal notes that the parties provided a copy of the contract of sale for the home; the contract is in the name of the sponsor.

23. The parties state that they met online in September 2015; the sponsor travelled to the Philippines and the parties met in person in January 2016. The parties were married in January 2019. The sponsor returned to Australia after the wedding and the applicant arrived in February 2020.

24. The Tribunal notes that the parties have a child together, who was born in Gladstone on 11 April 2022. A copy of the child’s birth certificate is on the Tribunal’s file. In his statement mentioned above, the parties’ representative states that the child is an Australian citizen and does not have dual citizenship; she does not have citizenship in the applicant’s country of the Philippines.

25. In a statement dated 12 August 2024 a work colleague of the sponsor, Belinda Hart, states that the sponsor is hard working and positive, well-mannered towards all levels of staff and undertakes all duties required. Ms Hart states that the sponsor is ‘a respectable individual’. In a statement dated 11 August 2024 a work colleague of the sponsor, Robert Wright, states that the sponsor is hard working and positive, well-mannered towards all levels of staff and undertakes all duties required. Mr Wright states that the sponsor is ‘a respectable individual’. The Tribunal notes that the statements by Ms Hart and Mr Wright are almost identical which raises concerns about their authenticity, and therefore gives these statements little weight.

26. At the time of application the parties provided a number of statements in regard to the sponsor’s character:

    a)In a statement dated 12 December 2020 Brian G Briggs states that the sponsor is of good character and hardworking, and regularly attended the Lighthouse Christian Church in Bauple, Queensland.

    b)In a statement dated 9 December 2020 Lorna Y Camaso states that the parties had rented a room from her when the sponsor lived in the Philippines with the applicant. Ms Camaso states that the sponsor was courteous and respectful and would always be welcome to stay with her and her husband should he return to the Philippines.

    c)In an undated statement Floyd Anthon F Dualos, a pastor of a ‘gospel centred community church’ in the Philippines states that the sponsor had attended his church and joined the Bible study group. Fr Dualos states that the sponsor is a ‘person of good character’.

    d)In a statement dated 9 December 2020 a friend of the sponsor Thomas Freakley states that the sponsor is ‘honest’ and ‘reliable’ and has ‘no trouble getting work’ in Queensland’s coal industry as he ‘is at the top of his field’.

    e)In a statement dated 9 December 2020 a friend of the sponsor Derek Mackinlay states that the sponsor is ‘of good character and has strong morals and family values’. Mr Mackinlay states that the sponsor is ‘very reliable and trustworthy’.

    f)In an undated statement a work colleague of the sponsor David George Taylor states that the sponsor is ‘kind, courteous and honest’.

27. The Tribunal gives some weight to the statements provided at the time of application.

    Conclusion

28. The Tribunal notes the significant offences committed by the sponsor between the years of 1983 and 2015 and the time he spent in jail for some of the offences and also notes the supportive statements by friends and colleagues, apart from the statements by Ms Hart and Mr Wright, regarding the sponsor’s character.

29. The Tribunal also notes that the applicant and sponsor claim to have been together since January 2016 and they have a joint child who they are raising together in a home owned by the sponsor. The Tribunal notes the statements by the sponsor and the parties’ representative that the sponsor now has a focus on an honest family life with the applicant and their child.

30. The Tribunal places great weight on the length of time that the parties claim to have been in a committed relationship as well as to their commitment to raising their child.

31. Therefore, considering reg 1.20KC(4)(a), the length of time since the sponsor completed his sentence for the relevant offences, and reg 1.20KC(4)(b)(i) and (ii) the best interests of the child that the sponsor and applicant have in common, the Tribunal considers it is reasonable for the Minister to approve the sponsorship. The Tribunal also notes that the parties claim to have been together since January 2016 and considers that the length of the relationship of eight years is relevant in regard to reg 1.20KC(4)(c).

32. On the evidence before the Tribunal the requirements of cl 820.221(4)(a) and cl 820.221A are met.

33. 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

34. 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 820.221(4)(a) of Schedule 2 to the Regulations

    ·cl 820.221A of Schedule 2 to the Regulations

    Cheryl Cartwright
    Member