Huynh (Migration)

[2023] AATA 92

Huynh (Migration) [2023] AATA 92 (7 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Van Tri Huynh

REPRESENTATIVE:  Mr Huu Loc Nguyen (MARN: 1801018)

CASE NUMBER:  1818383

HOME AFFAIRS REFERENCE(S):          BCC2017/2269707

MEMBER:Deputy President J.L Redfern PSM

DATE:7 February 2023

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; and

·cl 820.221(3) of Schedule 2 to the Regulations.

Statement made on 07 February 2023 at 3:00pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – delegate not satisfied about genuine relationship – sponsor in previous relationship – Tribunal satisfied about genuine relationship at time of application – claims corroborated by oral evidence of witnesses at hearing – relationship breakdown – family violence claim – DNA testing – ongoing legal obligations in respect of a child – child exception established – no substantive visa at of the time of application – Schedule 3 – compelling circumstances established – decision under review remitted
PROCEDURE – whether application valid – requirements should be construed broadly – application valid

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65

Migration Regulations 1994 (Cth), rr 1.15A, 1.21, 1.23, 1.23(10)(c), 1.25, Schedule 1 – Item 1124B(3)(e), Schedule 2 – cls 820.211(1), 820.211(2)(a), 820.211(2)(d), 820.211(2)(d)(ii), 820.221(1), 820.221(2), 820.221(3), 820.221(3)(b)(i), 820.221(3)(b)(ii) Schedule 3, criterion 3001, 3003, 3004

CASES

Babicci v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 285
Fitch v Migration Review Tribunal [2004] FCA 1673
He v Minister for Immigration and Border Protection [2017] FCAFC 206
MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50
Waensila vMinister for Immigration and Border Protection [2016] FCAFC 32

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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 27 June 2017 on the basis of his relationship with his sponsor, [name]. 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. Relevant to this matter the primary criteria include cl 820.211 and 820.221, which require that at the time of application and decision, the applicant must be the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist. These circumstances are that the applicant, or a member of the family unit, has suffered family violence committed by the sponsoring spouse or that the applicant and the sponsoring spouse both have ongoing connections with a child. The applicant claims both occurred in this case.

4. The delegate refused to grant the visa because he was not satisfied that the visa applicant was the spouse of the sponsor at the time of the application or that he satisfied the criteria under Schedule 3 to the Regulations, which he was required to do because he did not hold a substantive visa at the time of the application. These criteria do not need to be satisfied if the Minister, or the delegate, is satisfied that there are compelling reasons for not applying those criteria. In this case, the delegate was not satisfied that there were compelling reasons. The delegate also found that the visa applicant did not satisfy any of the other relevant subclauses and, as such, found that the visa applicant did not satisfy cl 820.211 at the time of application. Because he was not satisfied that the visa applicant met the criteria in cl 820.211(1), the delegate did not, nor was it necessary to, assess whether he met the relevant criteria at the time of his decision.

5. The applicant appeared before me on 28 November 2022 to give evidence and present arguments. At the end of the hearing, the applicant indicated, through his representative, that he was prepared to obtain DNA testing to establish that he was the biological father of the child said to be from the relationship. This testing was obtained and the matter was listed for further hearing on 2 February 2023. The Tribunal also received oral evidence from two witnesses, both of whom were long-standing friends of the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

7. For the following reasons, I have concluded that the matter should be remitted for reconsideration.

   CRITERIA FOR A PARTNER VISA

8. Clause 820 sets out the criteria for a partner visa. Clause 820.21 provides for the criteria to be satisfied at the time of the application. Notably, cl 820.211(1) provides that the applicant must meet the requirements of subclauses (2), (5), (6), (7), (8) or (9). The visa applicant meets the requirements of subclause (2) if the applicant is the spouse or de facto partner of a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen and who is not prohibited from being a sponsoring partner. The sponsor must be 18 years or over.

9. ‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)–(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are questions which must be answered: He v MIBP [2017] FCAFC 206.

10. If an applicant does not hold a substantive visa, he or she must satisfy certain criteria set out in Schedule 3 to the Regulations, namely, criteria 3001, 3003 and 3004, unless the Minister, or the decision-makers standing in the shoes of the Minister, is satisfied there are compelling reasons for not applying those criteria. Relevant to the facts of this case, criteria 3001 provides that an application should be validly made within 28 days after the relevant day, being, in this case, the day when the applicant was taken to have been notified of the decision of the Tribunal not to revoke the cancellation of the last substantive visa held by the applicant.

11. It is also relevant to note, given queries and correspondence recorded on the Department file about the validity of the application, that if an applicant does not hold a substantive visa and, after last entering Australia held a visa that was cancelled under section 109 of the Act, that applicant must satisfy item 1124B(3)(e) of Schedule 1. This provision relevantly provides that the applicant must not have been refused any of the visas referred to in subclause (i), which includes temporary and permanent spouse or partner visas, and the applicant must provide at the same time and place as making the application, an approved form 40SP signed by the spouse and two statutory declarations, each of which is made by an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is not the partner, and who declares that the applicant and the partner are in a married or de facto relationship, declared no more than six weeks before the day on which the application for the partner visa was made.

12. These two provisions, one relating to the validity of the application and the other relating to the criteria which must be established at the time of the application, provide additional requirements that must be met by an applicant who is an unlawful non-citizen when applying for a partner visa.

13. Clause 820.22 sets out the criteria to be satisfied at the time of the decision. Clause 820.221(1) relevantly provides that the applicant should continue to meet the requirements in cl 820.211(2).

14. Clause 820.221(3) provides that the applicant meets the requirements of this subclause if the applicant would continue to meet the requirements of cl 820.211(2) except that the relationship between the applicant and the sponsoring partner has ceased and either or both of the circumstances set out in cl (3)(b) apply.

15. The first circumstance is where the applicant or a dependent child of the sponsoring partner or both of them has suffered family violence committed by the sponsoring partner (refer cl 820.221(3)(b)(i)).

16. Under reg 1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim of family violence, and either the Minister or the Tribunal on review is satisfied that the alleged victim has suffered relevant family violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. Relevant family violence is defined in reg 1.21. A non-judicially determined claim of family violence may be made by the alleged victim in accordance with reg 1.24, which provides for a statutory declaration under reg 1.25 and evidence of a type and number specified by the Minister for these purposes (see IMMI 12/116). The statutory declaration must set out the allegation of family violence, name the person alleged to have committed the relevant family violence and if the conduct was not directed at the spouse or partner, name the person to whom it is directed and their relationship with the deponent. If the tribunal is not satisfied family violence occurred, the tribunal must seek the opinion of an independent expert about this matter and the opinion of the independent expert is binding (refer reg 1.23(10)(c) of the Regulations).

17. The second circumstance is set out in cl 820.221(3)(b)(ii) as follows:

    (ii)  the applicant:

    (A)  has custody or joint custody of, or access to; or

    (B) has a residence order or contact order made under the Family Law Act 1975 relating to;

    at least 1 child in respect of whom the sponsoring partner:

    (C)  has been granted joint custody or access by a court; or

    (D) has a residence order or contact order made under the Family Law Act 1975 ; or

    (E) has an obligation under a child maintenance order made under the Family Law Act 1975 , or any other formal maintenance obligation.

18. As observed by Dowsett J in Fitch v Migration Review Tribunal [2004] FCA 1673 at [4] in relation to a provision in cl 801 which is in the same terms, a visa applicant must satisfy items (A) and (B) and the sponsoring spouse must satisfy one of the items (C), (D) and (E) in relation to the same child. His Honour notes there is no requirement that the child in question be an offspring of the relationship between the visa applicant and the sponsoring spouse or that either of them be a biological parent of the child.

    CONSIDERATION

    Background and outline of evidence

19. The applicant applied for a Student Subclass 573 visa in Vietnam and arrived in Australia, as the holder of this visa, on 26 July 2013. He applied for a Skilled Subclass 189 visa on 18 March 2014, which was granted the following day. This visa was cancelled by the Department on 22 May 2015 because there was incorrect information provided in the visa application. The applicant sought a review of this decision by the former Migration Review Tribunal (MRT) on 5 June 2015. Following amalgamation, the Tribunal affirmed the decision under review on 5 December 2015. On 21 January 2016 the applicant lodged an application for a protection visa, which was refused on 14 July 2017. The applicant applied for review of this decision to the Tribunal on 21 July 2017 and this application is currently on foot.

20. The applicant’s sponsor married her former partner on 6 August 2012 and on 12 February 2015, she was granted a permanent partner visa based on this relationship.

21. According to the current application, the applicant claims that he first met the sponsor in 2014, while she was still married. It is claimed that [sponsor’s] relationship with her husband broke down in July 2015 and that the applicant and [sponsor] entered into a committed shared life together to the exclusion of all others from January 2016. They moved in together and lived in a house in Canley Vale from December 2015. The sponsor became pregnant in November 2015 and on 12 August 2016 she gave birth to a baby boy. The applicant is the biological father of the child. The sponsor divorced her ex-husband as evidenced by the court order made on 31 January 2017, with the divorce to take effect on 1 March 2017, and on 30 April 2017, the applicant and sponsor married.

22. It is claimed by the applicant that he and the sponsor were in a spousal relationship until July 2020, when he was kicked out of the family home by her. He claims that the relationship between him and [sponsor] deteriorated because of her increased drinking after the birth of their child and that he suffered both physical and psychological abuse from her after this time. He persevered but became increasingly anxious until the marriage broke down in July 2020. The applicant’s representative advised the Tribunal of this in correspondence dated 20 July 2020. The applicant provided detailed evidence in support of this claim prior to the first hearing, including a statutory declaration from him setting out the details of the conduct, statutory declarations corroborating his claims from close friends, reports from a registered psychologist and social worker, evidence of his application for victims support and details of the acceptance of his claim from Victims Services New South Wales by letter dated 10 July 2020. The applicant was approved for counselling, which he received over at least 19 sessions during 2020 and 2021.

23. At the time of the application, the applicant provided copies of a joint lease agreement dated 1 December 2015 for the Canley Vale property in respect of which it was claimed he and the sponsor were residing for two years, a statement outlining details of the relationship between him and his sponsor and how they met in the circumstances leading to the marriage, a statement from [sponsor] about their relationship, photographs of them together, including photographs of their wedding, details of [sponsor’s] divorce and their marriage, statutory declarations from two of the applicant’s long-standing friends in support of their application and correspondence with the Westpac Banking Corporation in relation to a joint account apparently operated by the applicant and the sponsor. The decision record of the delegate refers to bank statements recording transactions from December 2016 until 27 March 2017 held in the joint names of the applicant and the sponsor but unfortunately these documents were not included in the Department file.

24. The delegate noted that there was limited information provided about the financial aspects of the claimed relationship between the applicant and the sponsor. At the hearing, the applicant explained that financial information was provided to the Department in support of the application, although it was accepted that the information provided was limited. The applicant said that he had not understood he needed to provide further and more detailed information in this regard and believed that the information provided was sufficient.

25. As submitted by the applicant’s lawyer, once the matter was listed before the Tribunal, further detailed information was provided, including details of joint bank statements apparently operated by the applicant and the sponsor from early 2020 up to the time of the breakdown of the relationship in mid-2020, details about a claim lodged by the applicant against his sponsor with the police for domestic violence on 3 July 2020, a psychological report dated 10 November 2020 following referral from Victims Services New South Wales, details of child support assessments made by Services Australia in respect of child support assessed as being payable by the applicant to [sponsor] for the period 30 August 2021 to 31 August 2022, and copies of the applicant’s bank statements from 1 July 2020 to 29 June 2022 said to evidence payments made by him to [sponsor] for child support and other payments made on behalf of their child.

26. As already noted, the applicant arranged for DNA testing to be undertaken in respect of the child of the relationship. According to a report from Identilab Customer Service dated 21 December 2022, it was concluded that the probability that the applicant was the genetic father of the child was 99.99999423%. As such, I accept that the applicant and the sponsor have a child together and that this child was born in August 2016, over two years after they first began communicating, just over one year after they first met in person, nine months after it is claimed the applicant proposed to [sponsor] and approximately eight months after they commenced living together in Canley Vale.

27. The applicant provided evidence about his relationship with the sponsor to the effect that they began communicating through social media in 2014 and finally met at a coffee shop in July 2015. The relationship developed from this time. He knew that the applicant was married and had a child of that relationship, but he understood that the marriage had broken down and that she and her husband had separated. However, he did not find out about her son until their third meeting and while he was a little shocked at this information, he said that he had fallen in love with her and was happy to look after both her and her child. As their relationship developed, he asked [sponsor] to marry him in November 2015 and they moved in together shortly after. They lived in the Canley Vale property for more than two years and then moved to another property in Canley Vale where they lived together until their marriage broke down in July 2020. [sponsor] still lives at the second property with the two children. The applicant continues to see their son on a regular basis and has a close relationship with him. He pays more child support than required.

28. According to copies of consent orders provided by the applicant, [sponsor] has sole responsibility for making key decisions about their child, but the applicant has access to spend time with him every weekend, on the applicant’s birthday and on the child’s birthday, during school holidays and at other times as the parties agree. The orders also provide that each parent is obliged to notify the other about serious illness or injury to the child while in their care and the school is authorised to provide both parents copies of school notices, newsletters and reports. The consent orders are dated 12 December 2022 and they are in the process of being endorsed by the court. The applicant provided evidence of the application for consent orders which were lodged with the Federal Circuit and Family Court of Australia in Parramatta on 23 January 2023. Formal orders confirming these arrangements are not necessary to invoke the exception under cl 820.221(3)(b)(ii) but the fact that formal arrangements have been sought and agreed, adds weight to the evidence relating to these issues.

1. The applicant’s evidence at both hearings was credible and consistent with the evidence previously given.

2. Two witnesses attended the second hearing to give evidence in support of the application. Mr Ngoc Minh Pham provided a statutory declaration sworn 22 November 2022. He gave evidence that he had known the applicant for about nine years and that they were close friends. He said that he first met [sponsor] in mid-2015 when he accompanied the applicant to the coffee shop where they had arranged to meet for the first time. He met her briefly at that time. After the applicant and his sponsor moved in together, he attended their home for dinner on many occasions. He attended their engagement and wedding party and he can be seen in the photos provided by the applicant of this event. He said that the event was held in Cabramatta and while he cannot recall how many people attended, he said there were more than 10 tables of guests. Mr Pham also gave evidence that he observed increasing violent behaviour by [sponsor] against the applicant. Since they had parted, he has observed that the applicant has continued his close relationship with his son. Mr Pham accompanies them on outings from time to time.

3. Mr Xi Nguyen attended the hearing to give evidence. He also provided a statutory declaration in support of the application at the time the application was lodged. Mr Nguyen has known the applicant for about 20 years. He is close friends with one of the applicant’s parents and he considers the applicant to be like a nephew. He first met [sponsor] in 2015 when the applicant told him he had a girlfriend. He brought [sponsor] to his house at a birthday celebration on 1 November 2015. Mr Nguyen attended the engagement/wedding party which was also a celebration of the birth of their son. He was a witness to their marriage and the applicant provided photographs of this event, which included a photograph of Mr Nguyen signing the marriage certificate. Mr Nguyen also gave evidence about the instances of family violence and tension between the applicant and [sponsor] leading up to their separation in mid-2020.

4. The evidence of both these witnesses was credible and convincing.

   Findings

5. Unlike the delegate, I am satisfied that there is sufficient detailed evidence to support the claim that there was a genuine spousal relationship between the applicant and his sponsor at the time the application was lodged. I am also satisfied that this relationship continued, although I accept it became a difficult relationship, until about mid-2020, when the relationship broke down. I have the benefit of detailed further evidence provided to the Tribunal and at the hearing and oral evidence from the applicant and independent witnesses corroborating the claims made.

6. There is detailed contemporaneous evidence about the family violence alleged from mid-2020, details that the applicant sought and obtained counselling at the time and for an extended period after the alleged abuse. There is also evidence that the applicant and the sponsor lived together continuously from late 2015 until about mid-2020. Notably, this is corroborated by independent witnesses, whose evidence I found to be credible and detailed. The applicant provided numerous photographs which are sometimes not useful or probative, but in this case the photographs that were provided related to events that occurred in the early days of the relationship between the applicant and the sponsor, they evidenced outings attended by the applicant with the sponsor, the children and others and in various social settings and the photographs were varied and unrehearsed.

7. I accept that the circumstances leading to the relationship between the applicant and the sponsor, and in particular the proximity of the relationship between the applicant and the sponsor and the breakdown of her previous relationship, raises concerns. It is particularly concerning that evidence from the file suggests that the sponsor claimed to be in a committed relationship with her former partner in January 2015 at the same time she was communicating with the applicant. The sponsor was granted a permanent visa on 12 February 2015, yet their relationship allegedly broke down by July 2015. This does not, on its own, undermine the veracity of the applicant’s claims of a developing relationship between him and the sponsor in 2014 and 2015 but rather raises concerns about whether the sponsor was in fact in a genuine spousal relationship with her former partner at the time her permanent partner visa was granted.

8. There is a file note in the Department file, which was apparently not raised with the applicant, that the sponsor advised on 4 December 2017 that the relationship had broken down. It is noted that the sponsor was informed she would need to advise the Department about this in writing. It is also noted that the telephone line cut out and it does not appear that any further information was provided by the sponsor. This is likely to be the reason the issue was not raised with the applicant, but it is nonetheless consistent with the evidence of the applicant that when they argued and [sponsor] requested money from him, she would threaten to cancel his sponsorship to ‘send him back to Vietnam’.

9. For the reasons later explained, I do not need to make findings in relation to the family violence claim. Nor did I need to test the evidence provided by the applicant about these matters and, in fairness to the sponsor who has not been involved in these proceedings and does not have the ability to challenge these claims, I do not make any such findings. These matters are nonetheless raised in my decision to demonstrate what appear to be consistencies in the evidence provided by the applicant which also provides a plausible explanation about how the relationship developed and ultimately how it broke down.

   Matters in dispute and issues for determination

10. The applicant claims that he was in a spousal relationship at the time of the application and that, even though this relationship ceased in 2020, he meets the criteria in cl 820.221 by reason of the family violence and/or continuing child relationship exceptions.

11. There was a preliminary issue raised about the validity of the application given that the statutory declarations of the witnesses lodged at the time of the application do not expressly declare that the applicant and the sponsor were in a ‘married relationship’. It is submitted that both statutory declarations refer to such relationship by inference because they both refer to the sponsor as the visa applicant’s ‘wife’. It is further submitted that these declarations should not be construed narrowly and while this was an issue that was raised by the Department the day after the application was lodged (namely on 28 June 2017), the Department did not raise any ongoing concerns about the validity of the application after this date. If the Department had continued to raised concerns about whether the application was valid, a new application could have been immediately lodged correcting any deficit or perceived deficit in the statutory declarations. This was not done, and the Tribunal should proceed on the basis that the application was a valid application. I accept this submission.

12. There is no ‘estoppel’ arising from the fact the Department officer did not pursue this at the time of the application. However, the fact that the validity of the application was considered and was not raised any further is consistent with the notion that the Department officer construed the the statutory declarations provided as being broad enough to cover the requirements. While it would have been preferable for the statutory declarations to make a clear declaration that the deponent declared that the applicant and the sponsor were in a married relationship, both deponents referred to the ‘relationship’ between the applicant and the sponsor and one of the deponents refers to the sponsor as the applicant’s wife. The deponents respond to the specific questions asked in the form 888 and the inference is that the relationship referred to is the spousal or married relationship between the applicant and the sponsor. I see no reason to construe the content of the statutory declarations so narrowly, particularly given that the declarations do not themselves request that the deponents specifically address this issue in such express terms. I therefore accept that the application is valid.

13. Another issue in this case is that 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).

14. It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria. These criteria are set out in the attachment to this decision.

15. There is no dispute that the applicant and the sponsor were validly married, as required by

    
    

    s 5F(2)(a) of the Act. The sponsor was previously married, but she was divorced before the marriage between her and the visa applicant, as evidenced by the order from the Family Court of Australia dated 31 January 2017. The applicant and the sponsor were married through a civil ceremony on 30 April 2017. The applicant provided documentary evidence of the marriage, including the marriage certificate.

16. Nor is there dispute that the applicant and the sponsor have a child. This is evidenced by a report from Identilab Customer Service.

17. Having regard to the claims made, the issues for determination are as follows:

    (a)Were the applicant and his sponsor in a spousal relationship at the time of the application?

    (b)Does the applicant meet the Schedule 3 criteria? If not,

    (c)Are there compelling reasons for not applying the criteria?

    (d)Does the applicant satisfy the time of decision criteria under cl 820.221, and relevantly, do either of the exceptions in cl 820.221(3)(b) apply?

    Spouse relationship at time of application

18. Having regard to the evidence outlined above, I am satisfied that the applicant and the sponsor were in a spousal relationship at the time of the application and that this continued until about mid-2020.

19. In making these findings, I note that there is no evidence that the applicant and the sponsor jointly owned assets and had joint liabilities and that there is little documentary evidence they pooled their financial resources or that they shared day to day household expenses. The only evidence about this is the oral evidence of the applicant and the evidence, referred to in the delegate’s decision, that the applicant and the sponsor operated a joint bank account. As such, there is a paucity of evidence about the financial aspects of the relationship. On the other hand, I accept that the applicant and the sponsor lived together and, while they lived together, cared for the children together and shared household responsibilities. This is based on the evidence of the applicant and is corroborated by the lease arrangements and evidence from third parties. These matters relating to the nature of the household, are indicative of a spousal relationship.

20. I accept that there is evidence about the social aspects of their relationship to the effect that they attended activities jointly and held themselves out as a married couple to friends and family. This is corroborated by the evidence of the witnesses who attended the hearing. As such, I find that the social aspects of the relationship between the applicant and the sponsor are indicative of a spousal relationship.

21. I also accept that the applicant and the sponsor lived together for a number of years, that they initially had a strong commitment to each other through their child, although I also accept that this commitment appears to have deteriorated over time.

22. I am therefore satisfied that at the time of the application and for a number of years after the application, the applicant and the sponsor had a mutual commitment to their shared life to the exclusion of others that the relationship was genuine and continuing and that they lived together. It is apparent that this relationship broke down, possibly before mid-2020, but I am satisfied, based on the evidence of the applicant, that they were living together in a relationship, albeit somewhat compromised, until that time.

23. On the basis of the above I am satisfied that the requirements of s 5F(2) are met at the time the visa application was made.

24. Therefore, I am satisfied that the applicant meets the requirements of cl 820.211(2)(a).

    Does the applicant meet the Schedule 3 criteria?

25. As noted, it is not in dispute that the applicant did not have a substantive visa at the time of application and the issue is whether the applicant meets the Schedule 3 criteria.

    Criterion 3001

26. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision.

27. At the time of the application, the visa applicant did not hold a substantive visa and his last substantive visa was a Subclass 189 visa, which was cancelled on 22 May 2015. The applicant sought a review of the cancellation, and the former MRT affirmed the Department’s decision to cancel the Subclass 189 visa on 4 December 2015. As such, cl 3001(2)(d) does not apply and the provision for assessing the ‘relevant day’ is cl 3001(2)(c), which provides:

    (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

28. In this case, the ‘relevant day’ is therefore 22 May 2015. The applicant lodged the application for a partner visa on 27 June 2017, more than two years after his visa was cancelled. As such, the applicant did not lodge the application for a partner visa within 28 days of 22 May 2015, being the ‘relevant day’ for the purposes of criterion 3001 and he does not meet criterion 3001. Because the applicant does not meet criterion 3001, it is unnecessary to consider whether he meets the criteria in 3003 and 3004.

    Are there compelling reasons for not applying the criteria?

29. As I have found that the applicant does not meet the relevant Schedule 3 criteria, I am required to consider whether there are compelling reasons for not applying the criteria.

30. The expression ‘compelling reasons’ is not defined for these purposes. However, reasons that are compelling should ‘force or drive the decision-maker’ ‘irresistibly’ to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied: 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.

31. In this case, I am satisfied that there was a genuine relationship at the time of the application. The applicant is the father of a child born as a result of the relationship and he has close and continuing contact with that child. He also has ongoing responsibilities and care in respect of the child of that relationship. The relationship has ceased and, as such, there would be no utility in requiring the applicant to make a fresh application offshore. There would be no basis for such an application. Based on the material before me, I find that the impact on both the applicant and his child would be significant and unduly detrimental as it could lead to the indefinite separation of the applicant and his child. This is clearly not in the best interests of the applicant’s child.

32. Having regard to these matters, I am satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl 820.211(2)(d)(ii).

    Does the applicant satisfy the time of decision criteria in cl 820.221?

33. Clause 820.221 sets out the time of decision criteria. Subclause (1) provides that the applicant must continue to meet the requirements of the applicable subclause of 820.211, in this case subclause (2), or meet the requirements of subclause (2) or (3).

34. As already noted, cl 820.221(3) provides that an applicant will meet the requirements of the subclause where the applicant would continue to meet the requirements except that the relationship between the applicant to the sponsoring partner has ceased and the applicant is able to establish either or both of the circumstances set out in the subclause, namely that he or she has suffered family violence committed by the sponsoring partner or that he or she has custody, joint custody or access or a residence or contact order relating to at least one child in respect of whom the sponsoring partner has been granted joint custody or access by a court, has residence or contact orders or has an obligation under a child maintenance order or any other formal maintenance obligation under the Family Law Act1975. In summary, the ‘child exception’ in subclause (3)(b)(ii) provides that where a spousal or de facto relationship has ceased and both the visa applicant and the sponsoring partner have ongoing legal obligations or rights in respect of a child, the visa applicant may be eligible for the partner visa despite the relationship having ceased.

35. If an applicant satisfies one of the exceptions, it is unnecessary to consider whether the other circumstance is also established.

36. In this case, it is clear that the exception in subclause (3)(b)(ii) applies. The applicant has access to at least one child in respect of whom his sponsoring partner, [sponsor], has custody or access or at the very least a child maintenance obligation under the Family Law Act1975. This is evidenced by the court documents provided by the applicant prior to the second hearing.

37. Given these findings it is unnecessary for me to consider whether the family violence exception in subclause (3)(b)(i) also applies, although I note that the applicant has provided compelling probative evidence about these matters.

38. I am therefore satisfied that the applicant meets cl 820.221(3).

    Conclusions

39. 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

40. 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(3) of Schedule 2 to the Regulations.

    J.L Redfern PSM
    Deputy President

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day to day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

    Schedule 3

    3001

    (1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

    (2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

    (a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or

    (b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or

    (c)if the applicant:

    (i)       ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (ii)      entered Australia unlawfully on or after 1 September 1994;

    whichever is the later of:

    (iii)      the last day when the applicant held a substantive or criminal justice visa; or

    (iv)    the day when the applicant last entered Australia unlawfully; or

    (d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:

    (i)       the day when that last substantive visa ceased to be in effect; and

    (ii)      the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

    3003

    If:

    (a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

    (b)on 31 August 1994, the applicant was either:

    (i)       an illegal entrant; or

    (ii)      the holder of an entry permit that was not valid beyond 31 August 1994;

    the Minister is satisfied that:

    (c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with the conditions that apply or applied to:

    (i)       the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (ii)      any subsequent bridging visa; and

    (f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

    3004

    If the applicant:

    (a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

    the Minister is satisfied that:

    (c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with:

    (i)       the conditions that apply or applied to:

    (A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (B)any subsequent bridging visa; or

    (ii)      the conditions that apply or applied to:

    (A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

    (B)any subsequent bridging visa; and

    (f)either:

    (i)       in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

    (ii)      in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.