HSU (Migration) - [2025] ARTA 339

HSU (MIGRATION) [2025] ARTA 339 (27 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Ching Hsu
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2118615

Tribunal:General Member Howard
Place:Brisbane
Date: 27 February 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration in accordance with the order that the review applicant meets the following criteria for a Subclass 820 (Partner) visa:
·Regulation 1.20J(2) for the purposes of cl 820.221(4) of Schedule 2 to the Regulations

Statement made on 27 February 2025 at 3:01pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – sponsorship limitation – birth of Australian Citizen child – highly compelling circumstances affecting the sponsor – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.20J, Schedule 2, cl 820.221
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 November 2021 to refuse to grant the review applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The review applicant applied for the visa on 11 November 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.
The delegate refused to grant the visa on the basis that the review applicant did not satisfy cl 820.221(4) of Schedule 2 to the regulations.
BACKGROUND
The review applicant is Ms Ching Hsu, a citizen of Taiwan and the sponsor is Edward Michail, an Australian citizen.
The parties claim to have commenced a de facto relationship on 15 October 2016. An application for a Subclass 820 (Partner) visa was lodged on 11 November 2020.
On 29 November 2021, the delegate refused the visa application.
On 8 December 2021, the review applicant lodged an Application for Review in the Administrative Appeals Tribunal (now the Administrative Review Tribunal), (the Tribunal).
Section 106 of the Administrative Review Tribunal Act 2024 (the ART Act) outlines circumstances in which the Tribunal may reach a decision without a Hearing. Pursuant to s.106 (1):
“The Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the Hearing of the proceeding if any of subsections (2) to (5) applies.”
Relevantly, s.106(3) states as follows:
“This subsection applies if:
(a) the only parties to the proceeding are the applicant and a non-participating party to the proceeding or the hearing of the proceeding;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: HSU (Migration) [2025] ARTA 339
Case: [2025] ARTA 339
Decision Date: 27 February 2025

CaseChat Overview and Summary

In this matter, Ms Ching Hsu, a citizen of Taiwan, sought to challenge the delegate's decision to refuse her application for a Subclass 820 Partner (Temporary) visa. The sponsor for the visa application is Edward Michail, an Australian citizen. The application was refused by the delegate on the basis that the sponsor had previously been granted two relevant permissions, and therefore, the application did not satisfy the sponsorship limitation under Regulation 1.20J(1)(a). The Tribunal was required to determine whether the circumstances presented by the parties could be considered as 'compelling circumstances affecting the sponsor' under Regulation 1.20J(2). This determination involved assessing the nature of the de facto relationship, the financial interdependence of the parties, and the impact on the Australian citizen child born to the parties.

The Tribunal concluded that the circumstances presented by the parties did constitute 'compelling circumstances' as they involved a long-standing relationship of over eight years, significant financial dependency of the review applicant and child on the sponsor, and the emotional and psychological impact on the Australian citizen child if the review applicant were to depart. The Tribunal found that the potential outcomes of the review applicant's departure, including the deprivation of care and support to both the sponsor and the child, warranted a reconsideration of the application. Consequently, the Tribunal set aside the delegate's decision and remitted the application for reconsideration by the Minister.

The final orders of the Tribunal were that the decision under review be set aside and the application for a Subclass 820 visa be remitted for reconsideration by the Minister, considering the compelling circumstances presented by the parties.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The delegate refused to grant the visa on the basis that the review applicant did not satisfy cl 820.221(4) of Schedule 2 to the regulations. BACKGROUND The review applicant is Ms Ching Hsu, a citizen of Taiwan and the sponsor is Edward Michail, an Australian citizen. The parties claim to have commenced a de facto relationship on 15 October 2016. An application for a Subclass 820 (Partner) visa was lodged on 11 November 2020. On 29 November 2021, the delegate refused the visa application. On 8 December 2021, the review applicant lodged an Application for Review in the Administrative Appeals Tribunal (now the Administrative Review Tribunal), (the Tribunal). Section 106 of the Administrative Review Tribunal Act 2024 (the ART Act) outlines circumstances in which the Tribunal may reach a decision without a Hearing. Pursuant to s.106 (1):“The Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the Hearing of the proceeding if any of subsections (2) to (5) applies.” Relevantly, s.106(3) states as follows:“This subsection applies if:(a) the only parties to the proceeding are the applicant and a non-participating party to the proceeding or the hearing of the proceeding; and (b) either:(i)the decision is wholly in favour of the applicant; or(ii)the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and(c) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.” The Tribunal has had the benefit of receiving extensive evidence and submissions from the parties since the time of the delegate’s decision, which information was unavailable to the delegate. The Tribunal is further satisfied that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. CONSIDERATION OF CLAIMS AND EVIDENCE This application was the third partner application involving the sponsor. The delegate determined that the sponsor had been granted two prior relevant permissions as the spouse, de facto partner or prospective spouse of another person and therefore was prohibited by Reg 1.20J(1)(a) from sponsoring a further party. However, pursuant to Reg 1.20J(2), the Minister may approve the sponsorship if satisfied that there are ‘compelling circumstances affecting the sponsor’. The delegate’s decision of 29 November 2021 concluded that the review applicant failed to satisfy subclause 820.221(4) on the basis that no such compelling circumstances existed as contemplated by Reg 1.20J(2). Having carefully considered all the evidence, the Tribunal finds that the sponsor has been granted two prior relevant permissions as the spouse, de facto partner or prospective spouse of other persons and therefore fails to satisfy the relevant subclause.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. CONSIDERATION OF CLAIMS AND EVIDENCE This application was the third partner application involving the sponsor. The delegate determined that the sponsor had been granted two prior relevant permissions as the spouse, de facto partner or prospective spouse of another person and therefore was prohibited by Reg 1.20J(1)(a) from sponsoring a further party. However, pursuant to Reg 1.20J(2), the Minister may approve the sponsorship if satisfied that there are ‘compelling circumstances affecting the sponsor’. The delegate’s decision of 29 November 2021 concluded that the review applicant failed to satisfy subclause 820.221(4) on the basis that no such compelling circumstances existed as contemplated by Reg 1.20J(2). Having carefully considered all the evidence, the Tribunal finds that the sponsor has been granted two prior relevant permissions as the spouse, de facto partner or prospective spouse of other persons and therefore fails to satisfy the relevant subclause. The issue in this review is therefore whether the review applicant can satisfy the relevant subclause by establishing ‘compelling circumstances affecting the sponsor’ pursuant to Reg 1.20J(2). Compelling Circumstances Whilst there is no definition for what circumstances are considered ‘compelling’, they 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]. In Waensila v MIBP [2016] FCAFC 32, when considering in that case whether circumstances constituted ‘compelling reasons’ for not applying the Schedule 3 criteria, it was determined that these circumstances can arise at any time, including after the visa application is made. The parties have provided extensive evidence to the Tribunal relating to the facts and circumstances which they submit constitute compelling circumstances affecting the sponsor. The Tribunal notes the following matters in this regard:Birth of Australian Citizen Child(i)on 28 October 2024, a child was born in Australia to the review applicant and the sponsor;(ii)the parties have provided a Queensland Birth Certificate, showing registration of the birth on 13 November 2024;(iii)as the child was born in Australia, to an Australian citizen (the sponsor), the child is an Australian citizen;(iv)if the review applicant was required to depart Australia and the child accompanied her, the child would lose the extensive benefits of Australian citizenship owed to them and would be deprived of the emotional and psychological care and support of their father; and(v)if the review applicant was required to depart Australia and the child remained onshore in the care of the sponsor, the child would be deprived of the emotional and psychological care and support of their mother.Financial Support provided by the Sponsor(i)the sponsor operates a small business and provides the majority of financial assistance to his wife and child;(ii)in this respect, the review applicant and the child have a financial dependence on the sponsor, including ongoing and regular expenses of daily living;(iii)as a result, the family is highly dependent on the income earned by the sponsor;(iv)if the review applicant was to depart Australia and the child remained onshore in the care of the sponsor, the sponsor is likely to suffer a decrease in income due to the increase in parental and caring duties he would undertake relating to the child or alternatively there would be a requirement on the sponsor to engage, at considerable cost, an external carer to assist him with aspects of day-to-day care of the child; and(v)this financial penalty would affect both the standard of living of the sponsor and child as well as diminish the financial support the sponsor could provide to the review applicant.Long-Standing Relationship of the Parties(i)the parties have been a de facto couple since 2016 and have therefore been in a committed relationship for more than 8 years; (ii)the evidence from the parties confirms that the parties have a close relationship and the parties support each other practically, emotionally and psychologically; and(iii)the Tribunal notes in particular the Migration Regulations (Amendment) 1996 NO. 75 and in particular to the Explanatory Statement. Clause 10 of Schedule 2 gives examples of circumstances in which a waiver may be justified. Clause 10.1 states that the reasons must be of a “strongly compassionate nature” and refers to such reasons as including those ‘where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer’.

Decision

Reasons for decision

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 sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration in accordance with the order that the review applicant meets the following criteria for a Subclass 820 (Partner) visa:·Regulation 1.20J(2) for the purposes of cl 820.221(4) of Schedule 2 to the Regulations ATTACHMENT - Extract from Migration Regulations 19941.09A 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).

Ratio Decidendi

Legal Principle Established

The parties have provided extensive evidence to the Tribunal relating to the facts and circumstances which they submit constitute compelling circumstances affecting the sponsor. The Tribunal notes the following matters in this regard:Birth of Australian Citizen Child(i)on 28 October 2024, a child was born in Australia to the review applicant and the sponsor;(ii)the parties have provided a Queensland Birth Certificate, showing registration of the birth on 13 November 2024;(iii)as the child was born in Australia, to an Australian citizen (the sponsor), the child is an Australian citizen;(iv)if the review applicant was required to depart Australia and the child accompanied her, the child would lose the extensive benefits of Australian citizenship owed to them and would be deprived of the emotional and psychological care and support of their father; and(v)if the review applicant was required to depart Australia and the child remained onshore in the care of the sponsor, the child would be deprived of the emotional and psychological care and support of their mother.Financial Support provided by the Sponsor(i)the sponsor operates a small business and provides the majority of financial assistance to his wife and child;(ii)in this respect, the review applicant and the child have a financial dependence on the sponsor, including ongoing and regular expenses of daily living;(iii)as a result, the family is highly dependent on the income earned by the sponsor;(iv)if the review applicant was to depart Australia and the child remained onshore in the care of the sponsor, the sponsor is likely to suffer a decrease in income due to the increase in parental and caring duties he would undertake relating to the child or alternatively there would be a requirement on the sponsor to engage, at considerable cost, an external carer to assist him with aspects of day-to-day care of the child; and(v)this financial penalty would affect both the standard of living of the sponsor and child as well as diminish the financial support the sponsor could provide to the review applicant.Long-Standing Relationship of the Parties(i)the parties have been a de facto couple since 2016 and have therefore been in a committed relationship for more than 8 years; (ii)the evidence from the parties confirms that the parties have a close relationship and the parties support each other practically, emotionally and psychologically; and(iii)the Tribunal notes in particular the Migration Regulations (Amendment) 1996 NO. 75 and in particular to the Explanatory Statement. Clause 10 of Schedule 2 gives examples of circumstances in which a waiver may be justified. Clause 10.1 states that the reasons must be of a “strongly compassionate nature” and refers to such reasons as including those ‘where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer’. Having carefully considered all the evidence, the Tribunal is of the view that the potential outcomes if the review applicant was forced to depart Australia will be that the sponsor will be deprived of the emotional and psychological care and support of his longtime partner, together with a financial penalty relating to loss of income and the added expense of an external carer and an Australian citizen child will be deprived of the emotional and psychological care and support of their mother or father.