Hu (Migration) - [2024] ARTA 642

HU (MIGRATION) [2024] ARTA 642 (31 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Jianqin Hu
Respondent:  Minister for Home Affairs
Tribunal Number:  2113459

Tribunal:Senior Member M Bourke
Place:Melbourne
Date: 31 October 2024
Decision:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 31 October 2024 at 10:53am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – sponsorship limitations – sponsor had sponsored two persons for visas which were granted – not satisfied that the sponsor’s medical conditions amount to compelling circumstances affecting the sponsor – limited evidence of the genuineness of their relationship – not satisfied that the applicant has provided sufficient evidence that she is in a long relationship with the sponsor – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.20J, , Schedule 2, cls 820.211, 820.221
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 September 2021 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 27 January 2019. In the decision of the Department dated 16 September 2021, the delegate refused to grant the visa on the basis that the applicant did not meet the time of decision sponsorship requirements of cl.820.221(4).
The Tribunal had regard to its objectives to provide an independent mechanism for review, that is fair, just, ensures quick resolution of the review with little formality and expense, and ensures proper consideration of the matters in a manner that is accessible and responsive to the needs of the parties and allows transparency in decision-making. The Tribunal had regard to the fact the review applicant would be attending the hearing from Tasmania, and the review was constituted to a member in the Melbourne registry. The Tribunal had regard to the circumstances of the review applicant and the nature of the review. In these circumstances the Tribunal considered a video hearing was appropriate and exercise its discretion to conduct the hearing by way of video.
The review applicant and the sponsor were unable to participate in a first test dial conducted by Tribunal staff. A second test dial was conducted successfully. On the day of the hearing the review applicant was not able to connect to the hearing for over an hour and 20 minutes. The hearing accordingly commenced late. During the hearing the tribunal internet connection failed for five minutes, but was restored. Despite these difficulties, the Tribunal is satisfied that the participation of the parties in the hearing and the communication of the evidence was undertaken properly and appropriately.
The applicant appeared before the Tribunal by video on 23 October 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor who appeared with the applicant by video on the same device. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed all.
CONSIDERATION OF CLAIMS AND EVIDENCE
Sponsorship requirements and limitations
The issue in the present case is whether the applicant meets the time of decision requirements of cl.820.221(4)(a), which requires that the sponsorship requirements at the time of application referred to in the relevant subparagraph of cl.820.211, have been approved by the Minister and are still in force.
The Minister can only approve sponsorships that meet the requirements of reg 1.20J, and reg 1.20KA, 1.20KB and 1.20KC. In this review the issue is whether the applicant meets the requirements of reg 1.20J which applies to sponsorship limitations.
Specifically, reg 1.20J(1) requires that subject to sub regulations (2) and (3), if a person applies for a visa mentioned in sub regulation (1AA) as the spouse, de facto partner or prospective spouse of the sponsor, the Minister must not approve the sponsorship of the applicant unless the Minister is satisfied that: (a) not more than one other person has been granted a relevant permission as: (i) the spouse, de facto partner or prospective spouse of the sponsor on the basis of a sponsorship and nomination; or (ii) a person who ceased the relationship of a kind mentioned in subparagraph (i) with the sponsor after the person, or another person mentioned in the prescribed criteria for the visa, had suffered family violence committed by the sponsors; and (b) if another person has been granted a relevant permission in the circumstances referred to in paragraph (a) - not less than five years has passed since the date of making the application for that relevant permission; and (c) if the sponsor was granted a relevant permission as the spouse, de facto partner or prospective spouse of another person on the basis of a sponsorship and nomination - not less than five years has passed since the date of making the application for that relevant permission.
Effectively, reg 1.20J(1)(a) limits the number of sponsorships a person may enter into in relation to applications for spouse, de facto partner or prospective spouse visas to two applications.
However, reg 1.20(2) states that despite sub regulation (1), the Minister may approve the sponsorship of an application for a visa if the Minister is satisfied that there are compelling circumstances affecting the sponsor.
Assessment of the application of reg 1.20(1)(a)
In the application for the visa and the sponsorship form, the applicant and the sponsor confirmed that the sponsor had three previous relationships and had sponsored two persons for visas which were granted. The applicant and the sponsor confirmed in their oral evidence in the hearing that the information provided in the application for the visa and the sponsorship form was correct.
The Tribunal is satisfied that the sponsor married SL on 20 June 2010, was the sponsor for SL’s application for a subclass 309 visa, the visa was granted on 19 July 2012, and the relationship ended on 4 March 2014.
The Tribunal is satisfied that the sponsor was in a de facto relationship with PH from 2 September 2002, and was the sponsor for PH’s application for a subclass 309 visa, the visa was granted on 25 August 2005, and the relationship ended on 9 April 2006.
The Tribunal is satisfied the sponsor was married to JL, on 10 October 1997, the relationship ended on 8 August 2001 and there is one child from this marriage.
Accordingly the Tribunal is satisfied that the sponsor in the matter that is the subject of this review, has previously sponsored a spouse who was granted a subclass 309 visa on 19 July 2012, and a de facto partner who was granted a subclass 309 visa on 25 August 2005. Accordingly the sponsor has reached the sponsorship limitation as defined in reg 1.20J(1)(a).
Compelling circumstances affecting the sponsor
The Tribunal must then consider whether there are compelling circumstances affecting the sponsor, which is the only ground that the Minister may approve the sponsorship of an application for the visa pursuant to reg. 1.20J(2).
The Tribunal is satisfied that the applicant and the sponsor do not have children together.
The Tribunal is satisfied that the applicant has been previously married, on 31 March 2012, and separated from her first husband on 19 January 2018. The Tribunal accepts the evidence of the applicant that there is one child from her previous marriage who is currently residing with the child’s maternal grandmother in China. The Tribunal notes that the child was recorded as a non-migrating member of the family unit in the application for the visa lodged 27 January 2019. The applicant stated in the written and oral evidence that she intends to bring the child to Australia after the visa is granted. The applicant expressed some surprise in her oral evidence that the child was not included in the application for the visa. The Tribunal confirmed in discussion with the applicant that the child had not been included in the application for the visa. The Tribunal is satisfied that the child remained in China with his grandmother.
The Tribunal is satisfied there is no dependent child of the relationship. The Tribunal does not find the intention to bring the applicant’s son to Australia in the future amounts to compelling circumstances affecting the sponsor.
The sponsor stated that he had medical issues, including hearing loss and hypertension. No medical evidence had been provided to the Tribunal prior to the hearing, although during the hearing the applicant and the sponsor showed a hearing assessment report and a box of tablets.
The sponsor stated he suffered from nephritis stage 2, which he described as inflammation of the kidney, and a chronic kidney damage condition caused from his hypertension. The Tribunal invited the sponsor to provide a medical report in relation to this condition.
After the hearing the applicant provided submissions and attachments to the Tribunal on 25 October 2024. The attachments included an audiometry graph dated 13 August 2018, and audiometric report dated 5 October 2022 for the sponsor, which included handwritten notes advising the sponsor may require further medical opinion on management of his hearing loss and that he was counselled to use his hearing aids to reduce the hearing impairment.
The applicant also provided a patient identification sheet dated 16 August 2023 recording the sponsor was admitted for a colonoscopy and polypectomy procedure.
After the hearing the applicant also provided a copy of the packet of 30 olmetec tablets obtained on 28 February 2024 in the sponsor’s name prescribed to be taken half a tablet per day. There is no documentary evidence before the tribunal that the sponsor has been prescribed any medication since that date.
In the submission the applicant stated that the sponsor rarely visits his doctor, usually just for repeated prescriptions for his hypertension, and she does not attend with him because of her poor English skills. The applicant stated that the sponsor has a home blood pressure monitor. In the written post hearing submission received on 25 October 2024, the applicant stated that the sponsor has chronic hypertension and a serious hearing problem, which are not life-threatening medical conditions. The applicant submitted that these conditions are long-term medical conditions which require careful home care, including cooking healthy low-salt meals.
On 29 October 2024, the applicant provided a further submission, in which she stated that the sponsor relies on the applicant on occasions when he is not using his hearing aids, and he cannot wear them 24 hours a day. The applicant submitted the sponsor’s poor hearing causes him to experience mental tension and his poor hearing causes slow reactions when driving. The applicant submitted the sponsor currently experiences episodes of dizziness, and that he needs her for future health emergency possibilities which may be caused by his high blood pressure, and would require the applicant to call an ambulance in the event of a stroke or heart attack.
The Tribunal accepts that the sponsor experiences hearing loss, and is assisted by hearing aids to minimise the impact of the hearing loss. The Tribunal accepts that the sponsor attended for audiometric assessment in August 2018 and October 2022. The Tribunal is satisfied that the sponsor has been prescribed medication in early 2024. The Tribunal accepts the sponsor underwent a colonoscopy and polypectomy procedure in August 2023. The Tribunal assesses this evidence indicated that the sponsor has undergone appropriate medical assessment and treatment, mostly commensurate with his age. There is no medical evidence provided to the Tribunal that indicates the sponsor has any significant medical condition, although the Tribunal acknowledges the report and oral and written evidence is that the sponsor experiences hearing loss.
The Tribunal accepts the submission of the applicant that by eating healthy meals the applicant can reduce his hypertension condition. The Tribunal is satisfied that the use of hearing aids can assist the sponsor to overcome difficulties created by his hearing loss. The Tribunal has considered the evidence of the sponsor’s medical conditions, and accepts the applicant provides some support to the sponsor to cope with his health conditions and provide assistance in the form of cooking meals and companionship. There is no evidence before the tribunal, and no medical report that suggests, the sponsor is currently at risk of a heart attack or stroke, although the tribunal accepts the applicant and sponsor may be concerned this is a possibility in the future. The evidence before the tribunal was not that the applicant acted as a driver for the sponsor, and the tribunal is not satisfied that the sponsor relies on the applicant for transport or to drive him to appointments or daily activities or on necessary errands. For all these reasons, the Tribunal is not satisfied that the sponsor’s medical conditions amount to compelling circumstances affecting the sponsor.
The applicant submitted that she and the sponsor had been in a long-standing relationship, and on this basis compelling circumstances affecting the sponsor exist for the waiver of the sponsorship limitations in reg 1.20J(1). The Tribunal has considered the information in the Department’s decision record dated 16 September 2021, a copy of which was provided to the Tribunal by the applicant, in which the delegate concludes there is insufficient evidence to satisfy the Department that the applicant and sponsor are in a genuine and committed relationship, and therefore demonstrating that the applicant and sponsor are in a long-standing relationship. It is relevant that the delegate set out that there was insufficient evidence of the relationship, and for this reason the delegate was not satisfied that a long-standing relationship existed.
The applicant was invited to provide submissions to the Tribunal, relevant to the review prior to the hearing. The applicant provided some submissions prior to the hearing. The Tribunal discussed with the applicant and the sponsor in the hearing that there was a very limited evidence of the genuineness of their relationship before the Tribunal, and the Tribunal gave the applicant further time to provide evidence after the hearing. The applicant and the sponsor stated they could provide further evidence of their continuing and long-term relationship, and that they understood the relevance of this to the issues in the review.
Prior to the hearing the applicant had provided the Tribunal with a copy of the Department’s decision record, and a submission which included a joint statement, a collection of photos, some correspondence addressed to their Tasmania address, a joint utility bill dated September 2024, the applicant’s payslip dated September 2024, the first page of sponsor’s tax return 2023 (ticked ‘yes’ had spouse or partner), joint bank statements recording balances of $9.25 and $0.34 dated June 2024 and not showing any transactions, hotel registration with both names, screen shots of video calls and copies of their drivers licences and reward club cards.
After the hearing the applicant provided the Tribunal with a further submission, with attachments on 25 October 2024 which included the sponsor’s audiometry assessments reports dated 2018 and 2022, the hospital identification sheet for the sponsor dated 2023, the copy of the medication box, the statutory declaration from their neighbour and some photos. The applicant provided a further submission on 29 October 2024 with no attachments. The post hearing submissions were due on 30 October 2024. No request for further time or indication that further information was to be provided was received by the Tribunal.
The applicant and the sponsor both acknowledged that the sponsor had been in three previous significant relationships. The sponsor stated he would not end this relationship with the applicant and commence another one because he was too old. The applicant stated that the sponsor was declining, and therefore needed her and she believed that the relationship would continue.
The applicant submitted that she does all the cooking and washing, and that the sponsor would suffer significantly if she was forced to leave him living alone. The Tribunal acknowledges that if the applicant is undertaking all the cooking and washing, the sponsor would experience some difficulty if he either had to do the cooking and washing himself, or arrange for someone to do the cooking and washing for him if the applicant was not there to do it for him. However the fact that the applicant is undertaking the cooking and washing for the household, and that the sponsor relies on the applicant to do the cooking and washing as a member of the household, does not in the Tribunal’s view, amount to compelling circumstances affecting the sponsor.
The Tribunal has considered the information provided by the applicant and the sponsor that they moved to Tasmania in February 2019, when the sponsor purchased their home in Launceston. The applicant and the sponsor stated the home was purchased in the sponsor’s name alone, and is not subject to a mortgage. The Tribunal has considered the three statutory declarations in support of the application for the visa provided to the Department are all dated February 2019, and made by two friends of the applicant who reside in China and a person who was a tenant of the applicant and sponsor in Sydney. Prior to the hearing, the applicant had provided the Tribunal with submissions including photographs but no statutory declarations or statements in support of the application for review, dated after February 2019.
The Tribunal invited the applicant and sponsor to provide evidence from other persons who had knowledge of their relationship since they have resided in Tasmania for the last 5 ½ years. The Tribunal invited the applicant to provide statements from family members, friends or colleagues. The Tribunal invited the applicant to provide a letter from the sponsor’s doctor, whom the Tribunal suggested would be aware of the sponsor’s medical condition, and his relationship with the person caring for him. The applicant stated in the post hearing submission she did not attend the sponsor’s medical appointments with his treating doctor, but did attend some medical examinations with him, including a CT scan.
The applicant showed the Tribunal a photo of her and the sponsor with their neighbour. After the hearing the applicant provided a statutory declaration from their neighbour who stated she had known the applicant and the sponsor since they moved into the property in February 2019, and that they visit each other’s houses sometimes. The neighbour declared that they exchange some cooking items, and Christmas gifts. The neighbour confirmed that the sponsor’s mother and brother came to visit the applicant and the sponsor in 2019. The statutory declaration of the neighbour describes the applicant and sponsor as a couple, but gives very little information about the relationship between the sponsor and the applicant.
The applicant stated that she works part-time. The sponsor stated that he had resigned from his work in a hospital in Sydney because of his hearing loss, and now he is retired but makes money in stock trading. The Tribunal is satisfied that the parties do not jointly own real estate or other major assets, and the house in Launceston is owned solely by the sponsor. The Tribunal is satisfied that house is not subject to a mortgage, and there is no evidence of any other liabilities. There is no documentary or oral evidence of the parties pooling their financial resources, particularly in relation to major financial commitments. The Tribunal accepts the applicant and sponsor have joint bank accounts with small balances. There is no evidence before the tribunal that one party in the relationship owes any legal obligations in respect of the other. The Tribunal accepts that the parties share day-to-day expenses for the household, but this does not indicate the parties are in a genuine and continuing relationship.

There is very little information before the Tribunal about the nature of the household in relation to the relationship between the applicant and the sponsor. The Tribunal is satisfied that the applicant and the sponsor reside at the same address in Tasmania, based on the correspondence provided. The evidence indicates that the applicant is responsible for most of the housework, although the Tribunal was provided with photos of the parties sharing cleaning and household duties. The Tribunal accepts that the applicant and the sponsor reside at the same address, and the applicant undertakes the responsibility for most of the housework, but does not find there is strong enough evidence to indicate the parties reside as a couple. The child of the applicant resides in China with her maternal grandmother. There is no documentary evidence provided, but the Tribunal notes there was a claim made to the Department that the parties provided financial support for the child.
There is very limited evidence that the applicant and the sponsor represent themselves to other people as being married to each other. The Tribunal notes that the applicant was unable to provide a letter from the sponsor’s doctor in relation to the sponsor advising his treating general practitioner of their relationship. There is very limited evidence about the opinion of the parties’ friends and acquaintances about the nature of the relationship. The Tribunal notes that there is no statement since February 2019 from any other person except the neighbour, and the statutory declaration from the neighbour is very limited. The Tribunal has considered the photos of the applicant and sponsor and accepts that they socialise and spend time together. The Tribunal is satisfied based on the evidence of the applicant and sponsor (which is consistent with Department movement records) that they have travelled overseas after the pandemic, but they have not travelled overseas at the same time since the travel restrictions were lifted after the pandemic. The sponsor stated this was because of security concerns for his home as he had no insurance.
The Tribunal is satisfied that the parties are residing together at the same property in Tasmania, and resided together at the same property in Sydney prior to February 2019. The Tribunal is satisfied that the applicant provides care for the sponsor, cooks meals for him and is concerned about his medical conditions. The Tribunal is satisfied that the applicant and the sponsor provide companionship for each other. The Tribunal accepts the applicant and sponsor have known each other for many years.
Overall the Tribunal has assessed the evidence the applicant and the sponsor have provided of their de facto relationship, and is not satisfied there is sufficient evidence to demonstrate that they are in a genuine and continuing relationship. The Tribunal is satisfied that the applicant and the sponsor had reasonable opportunity both prior to the hearing, during the hearing, and after the hearing to provide information or evidence about their relationship. The Tribunal is satisfied that the applicant was aware the lack of evidence to demonstrate her relationship with the sponsor was genuine and continuing was an issue that was relevant to the review, and that this issue was discussed with the applicant and the sponsor in the hearing.
The Tribunal is not satisfied that the applicant has provided sufficient evidence that she is in a long relationship with the sponsor. The Tribunal is not satisfied that the evidence of the relationship between the applicant and the sponsor amounts to compelling circumstances affecting the sponsor.
Conclusion
the Tribunal has considered all the information and evidence available to it. The Tribunal has considered the information and evidence, both individually and collectively. The Tribunal is not satisfied that there are compelling circumstances affecting the sponsor. The Tribunal is therefore not satisfied that the sponsorship for the application of the visa can be approved pursuant to reg 1.20J(2).
For the reasons stated above the Tribunal is satisfied that the limitations in reg 1.20J(1) apply. Further the Tribunal is not satisfied that there are compelling reasons affecting the sponsor for waiving the limitation requirements.
For these reasons, the Tribunal finds that the requirements of cl.820.221(4) are not met.
Therefore the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Partner (Temporary) (Class UK ) visa.
Date(s) of hearing: 23 October 2024
Representative for the Applicant: N/A