Kumar (Migration)

[2023] AATA 4621

Kumar (Migration) [2023] AATA 4621 (24 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Puneet Kumar

VISA APPLICANT:  Mrs Kavita Mehraulia

REPRESENTATIVE:  Mrs Anne Frances O'Donoghue (MARN: 9368943)

CASE NUMBER:  1917221

DIBP REFERENCE(S):  BCC2018/5518645

MEMBER:Christine Kannis

DATE:24 November 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.213 of Schedule 2 to the Regulations

·cl.309.222 of Schedule 2 to the Regulations

Statement made on 24 November 2023 at 8:36am

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa – subclass 309 – sponsor is affected by the sponsorship limitation – sponsor no longer has immediate family members or close friends in India – sponsor will experience severe emotional and psychological hardship if the applicant cannot relocate to Australia – previous sponsored relationships were genuine relationships – emotional, psychological and physical hardship – mental health – there are compelling circumstances affecting the sponsor – sponsorship should be approved –  decision under review remitted     

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.20, Schedule 2, cls 309.213, 309.222

CASES
Babicci v MIMIA [2005] FCAFC 77

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 on 28 May 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 7 December 2018 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.222 because the application for the visa is subject to sponsorship limitations, and the delegate was not satisfied the sponsor’s circumstances were sufficiently compelling to waive the sponsorship limitations in r.1.20J.

4. The sponsor appeared before the Tribunal by MS Teams video on 13 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In accordance with the President’s Direction Conducting Migration and Refugee Reviews (paragraph 8.2), the Tribunal has restricted its review to the particular criterion on which the primary decision was made. 

8. The issue in the present case is whether is whether the sponsorship limitations apply in this case, and if so, whether there are compelling circumstances affecting the sponsor for not applying the limitation requirements.

   Are the sponsorship requirements met?

   cl.309.213

9. Clause 309.213 requires that the visa applicant is sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in r.1.03 of the Regulations).

10. At the time of decision, this sponsorship must have been approved and still be in force. For visa applications made on or after 18 November 2016 the sponsor must also have consented for the Department to disclose to each sponsored applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl.309.222. Approval of sponsorship is subject to limitations contained in r.1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship, and in r.1.20KA which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. There are further limits imposed by r.1.20KB in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010 and r.1.20KC in relation to sponsors convicted of a relevant offence who have a significant criminal record where the visa application was made on or after 18 November 2016.

11. The Tribunal has no adverse information before it relating to the identity and age of the sponsor.  Similarly, the evidence does not highlight any criminal activity by the sponsor.  On the evidence the Tribunal is satisfied that the visa applicant meets cl.309.213.

    cl.309.222

12. Regulation 1.20J requires that the Minister not approve the sponsorship of the applicant unless the Minister is satisfied that:

    a.not more than 1 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 nomination; or
    (ii) a person who ceased a 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 sponsor; and

    b.if another person has been granted a relevant permission in the circumstances referred to in paragraph (a) – not less than 5 years has passed since the date of making the application for that relevant permission.

13. In this case two other people have previously been granted a relevant permission as the spouse, de facto partner or prospective spouse of the sponsor on the basis of a sponsorship or nomination.  Therefore the sponsor is affected by the sponsorship limitation set out in paragraph 1.20J(1)(a).  Subregulation 1.20J(2) provides that, despite subregulation (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.

14. The sponsor was granted Australian citizenship in 2001. He declared two previous marriages. He sponsored both his previous spouses to Australia.  The visa applications were made in 1999 and in 2006.  The sponsor’s previous marriages ended in divorce. He has an adult daughter from his first marriage and an 8 year old son from his second marriage.

15. The visa applicant has not previously been married and has no children.

16. The partied met on 21 April 2018 and were married on 29 April 2018 in India.

17. The visa applicant and the sponsor do not have a child together. 

18. Departmental records show the sponsor has travelled overseas several times since the Partner visa application was lodged. His dates of travel were:

    ·    18 January 2019 to 12 February 2019

    ·    24 July 2019 to 17 August 2019

    ·    24 December 2019 to 5 February 2020

    ·    1 October 2020 to 25 December 2020

    ·    3 January 2022 to 23 February 2022

    ·    11 May 2022 to 15 June 2022

    ·    11October 2022 to 27 October 2022

    ·    23 January 2023 to 17 February 2023

    ·    5 June 2023 to 30 June 2023

19. The sponsor confirmed with the Tribunal that this travel was to visit the visa applicant in India. He said he is currently in India having departed Australia on 16 October 2023. The Tribunal noted that the parties attended the hearing together.

20. The Department advised the visa applicant on 7 February 2019 that the r.1.20J(1)(a) requirement could be waived upon consideration of compelling circumstances pursuant to Regulation 1.20J(2). In response, the sponsor provided the following as compelling circumstances:

    ·Evidence demonstrating his financial circumstances;

    ·Evidence in support of the genuineness of the parties’ relationship including evidence of communication;

    ·Evidence of  the sponsor’s father’s travel from India to attend the sponsor’s wedding;

    ·Statement from the visa applicant in which she provided information in relation to the genuineness of the parties’ relationship. She also said she wants to start a family and the sponsor has concerns as to who will take care of her during her pregnancy if she alone in India. She said that the sponsor assures her that once she is in Australia things will be better and they can plan their family.

    ·Statement from the sponsor in which he referred to his financial responsibilities and that he has been living in Australia for last 20 years. He said that it would be difficult, considering his age of 45 years, to meet his financial commitments in India.

    Evidence provided prior to the hearing

21. Photographs of the sponsor with the visa applicant together and with others.  

22. Birth certificate of the sponsor’s son (dob 28.03.2015).

23. Evidence of enrolment dated 17 December 2020 in relation to the sponsor’s son.  

24. Statutory declaration dated 5 September 2022 made by the sponsor in which he provided the following information:

    ·His first marriage ended in divorce when his wife abandoned him and left with his daughter. His second marriage also ended and he has a son from that relationship.

    ·He met the visa applicant in April 2018 in India and they married on 29 April 2018. He stayed in India for 2 months following the wedding. He has visited the visa applicant 2 or 3 times per year.

    ·He supports the visa applicant financially and they take care of each other’s emotional and social needs. It has been hard to live a long distance relationship.

    ·He has a good relationship with the visa applicant’s family and she has a good bond with his family.

    ·He wants to stay with the visa applicant and have a normal family life in Australia. It has been difficult living apart for 4 years. Because of COVID-19, age factors and medical conditions, the visa applicant was unable to fall pregnant naturally. They decided to have a baby through the IVF process and are following medical advice but not being together has made the IVF process harder.

    ·It is difficult for him to live here alone because if he is sick he has no immediate support. In the previous year he was diagnosed with diabetes and advised to take care of his diet however he doesn’t have support at home and he eats readymade supermarket food which is not good for his diabetes.

    ·He migrated to Australia when he was 24 and had spent most of his life here. His entire work experience has been here and he has no support in India. Given his age and lack of local working experience  it would be difficult for him to find an adequate job in India and he would face severe financial hardship.

    ·He sees his 7 year old son twice a week. If he relocates to India he would not be able to see his son and that would affect the child as he provides him with emotional, psychological and financial support. It would be difficult to provide these if he relocates to India.

    ·His entire family live in Australia and as an extended family they share a good bond and support each other emotionally and socially. His 70 year old father underwent surgery in June 2022 for his gallbladder and fatty liver. His recovery required detailed attention. He needs to take care of his father physically and to provide emotional support. His father wants to spend time with  him and his brother and he does not want to live away from him.

    ·He works as an Uber driver full-time and if he relocated to India it would be difficult to find adequate employment. He would also not have the same support in the health system in India and it would cost more to treat his diabetes.

25. Written statement dated 2 September 2022 (translated and certified) made by the visa applicant in which she describes the inception of her relationship with the sponsor and their marriage. In the statement she provided the following information:

    ·     After they were married, the sponsor stayed with her in India for 2 months.

    ·     The sponsor was diagnosed with diabetes in the previous year and she has to keep a check on his diet which is difficult when they are living apart.

    ·     The sponsor supports her financially, emotionally and psychologically.

    ·     The sponsor has a good relationship with her family members and she has a good rapport with his family via video and telephone.

    ·     She married at 38 and their priority is to have a child together. After unsuccessful attempts to conceive, they decided to undergo IVF in 2021 however there have been blood flow issues and they are hoping in the next cycle they will be blessed with a healthy child.

    ·     The sponsor is facing difficulties staying alone in Australia. His diabetes requires attention to his diet and because he is busy working he doesn’t have time to prepare his meals and eats readymade food which is not good for his diabetes.

    ·     The sponsor has a 7 year old son from a previous marriage to whom he provides emotional and financial support. He also supports his 70 year old father who underwent 2 surgeries in June 2022.

    ·     If the sponsor relocates to India, their family will struggle with financial hardship. It would be difficult for him to find employment due to his age and lack of local working experience. He will not be able to support his son. He would also leave the health practitioners he trusts in Australia and pay more money in treating his diabetes in India.

    ·     If her visa is refused it will be difficult for her to live without the sponsor. It is a mental and psychological strain to live apart as they have for 4 years. When she underwent a medical procedure as part of IVF in March 2022, she had to ask relatives to stay with her. These are the hardships she had to face being alone.

26. Report from Clinical Psychologist, Mrs Robby Taouk in which the following relevant information was provided:

    ·The assessment was conducted on 5 August 2022 via video conference of 2 hours involving a clinical interview with the sponsor and a joint interview with both parties.

    ·The sponsor reported having an established history of depressive illness stemming from the discovery of his first wife’s infidelity. He also exhibits trauma from the discovery and emotional pain from his first wife blocking his efforts to have a relationship with his daughter.

    ·The sponsor reported a chronically low mood, impaired concentration, anhedonia, decreased energy and sleep difficulties. He has a medication review with his doctor to trial anti-depressant medication which is compatible with his Type 2 diabetes.

    ·The sponsor completed the DASS 21 which includes three self-report scales measuring depression, anxiety and stress. His results indicate he suffers extremely severe depression, moderate anxiety and mild stress.

    ·The sponsor felt more hopeful about his life when he met the visa applicant and said when they married he felt supported. He speaks to her daily and she talks him through his sad periods and it makes a big difference knowing she cares about him. He reported that when he is with the applicant his mood significantly improves.

    ·The sponsor reported being socially withdrawn and other than his father and his brother, he doesn’t have much social support in Australia.

    ·The visa applicant appears to be a suitable partner for the sponsor and her support is imperative in light of his mental health challenges. She cooks suitable meals for his diabetes.

    ·The parties have undergone IVF treatment and the next embryo transfer is in August 2022.

    ·The parties have discussed their life in Australia. The sponsor noted he has no life without the applicant.

    ·The sponsor lives alone, lacks a social circle and works as an Uber driver. He is worried about the time passing as he and the visa applicant are older and want to have a family together. The visa applicant’s physical absence means he lacks the daily face to face encouragement to take care if his health. He is more vulnerable to psychological distress due to these factors.

    ·If the sponsor relocated to India it would have a detrimental effect on him and his son including that he would not be able to provide financial support. He has already suffered the loss of not being present for his daughter (now 22 years old). He sees his son twice a week.

    ·The sponsor no longer has immediate family members or close friends in India and has no strong ties there.

    ·The sponsor is currently experiencing symptoms congruent with a diagnosis of Major Depressive Disorder. The sponsor noted that if the waiver is unsuccessful ,he will have to relocate to India which will have huge emotional and financial costs including in relation to his son. He noted he is unlikely to be able to afford IVF treatment in India.

    ·The sponsor stated that he is living in a state of protracted uncertainty which is creating further exacerbation of pre-existing depression and cumulative stress.  

27. Documents evidencing the sponsor’s financial circumstances including his Individual Taxation Returns and bank statements and photographs and evidence of travel and communication.

28. Medical evidence in relation to the visa applicant including evidence of IVF treatment.

29. Letter dated 12 October 2023 from Dr A R Alamgir stating that the sponsor was diagnosed with Type 2 diabetes in 2021 and is taking medication and that he does not have any close family member to look after him.

30. Statutory declaration made by the sponsor’s brother attesting to the genuineness of the parties’ relationship.

31. A written submission dated from the representative which included information provided by the parties and the additional relevant information:

    ·The compelling and compassionate circumstances in this matter are that the visa  applicant and sponsor continue to be in a spousal relationship and are planning to have a baby via IVF,  considering the age factor of both parties. The sponsor also has a commitment towards his employment/ business in Australia.

    ·The sponsor has been living in Australian since 1998 and is unable to re-enter the India job market given his age, health condition, lack of local work experience and social, business connections. He will face severe financial hardship if he was forced to relocate. He has been excelling in his workplace and his hard work has been recognised through the employment awards. His role as an Uber driver serves the community especially during the COVID-19 pandemic.  

    ·The visa applicant relies on the sponsor for mental, physical and financial support. If they were to be separated, it would lead to severe stress and anxiety on behalf of the visa applicant. The parties commenced professional IVF treatments which is a long-term process. If they are forced to remain separate, the visa applicant will not have the sponsor’s support.

    ·The sponsor will experience severe emotional and psychological hardship if the applicant cannot relocate to Australia (see psychologist’s report).

    ·The sponsor has not misused the migration provisions in the past and is not attempting to misuse them now.  His two previous sponsored relationships were genuine relationships. He is now in a long-standing genuine relationship with the visa applicant.

    ·It would be a significant hardship on the Australian Citizen sponsor to not allow the applicant to enter Australia. The parties rely on each other for financial, emotional and psychological support. It would also cause extreme hardship on the Australian Citizen sponsor to deny his chance to live a happy and supportive life with the visa applicant in Australia.

    ·If reg 1.20J is not waived, it would cause great emotional, psychological and physical hardship on the visa applicant. She also relies on the sponsor for support and care an also his financial support for her treatments and medicine. If the visa applicant is forced to stay separated, this would affect her emotionally, psychologically and financially.

    ·The sponsor has emotional and financial constraints which prevent him from relocating to India.    

    Evidence provided at the hearing

1. The sponsor told the Tribunal that his previous marriages ended because his first wife was unfaithful and ended the relationship when she was granted permanent residency and his second wife became heavily involved in a temple and told him she intended to be celibate.

2. The sponsor told the Tribunal that it has been difficult emotionally and financially to travel to India every few months to see the visa applicant. He said he has had to borrow money from his father and his brother because when he is in India he is not earning any income. His ongoing expenses include financial support of his son in Australia and of the visa applicant.  He said separation from his son for extended periods has been difficult and they communicate frequently when he is in India. He said when he is in Australia he has contact (access) with his son twice a week. The sponsor told the Tribunal that the frequent travel also causes him to feel mentally stressed because of these emotional and financial difficulties.

3. In response to the Tribunal asking about the IVF process he and the visa applicant are currently undergoing, the sponsor said he wants the visa applicant to continue with the treatment (including the next implantation) in Australia because he can look after her if she is here. He said after her father passed away, there is nobody in India to care for her if she requires it.  He said he feels anxious about the visa applicant living alone.

4. The sponsor told the Tribunal that he wants to live with his family in Australia. He said that is the reason he married the visa applicant and it is his last chance to live as a family with his wife. He referred to his two previous marriages ending and not living with his son.

5. The sponsor told the Tribunal that he feels he is stuck between two countries and it is very stressful to live in this way.

6. In response to the Tribunal asking about his diabetes diagnosis, the sponsor said in 2022 he was diagnosed with Type 2 diabetes and prescribed medication.  His doctor advised him to eat a healthy diet however his job as an Uber driver means he often has no time to prepare meals and he eats junk food. He said if the visa applicant lived in Australia she would ensure that he ate healthy food. He contended this is a compelling circumstance for waiver of the sponsorship limitation.

7. The sponsor told the Tribunal that he first arrived in Australia in 1998 and has lived here ever since. He works as an Uber driver in Sydney. He said he does not have any skills or employment history which would enable him to find employment in India. He said a driver’s income in India would not be sufficient to cover his financial obligations including the financial support of his son in Australia.

8. Noting Mrs Taouk’s reference to the sponsor having an established history of depressive illness, the Tribunal asked him about the diagnosis and treatment of his depression. He said he was prescribed anti-depressant medication in 2000. He said he is not currently taking anti-depressant medication however his doctor has prescribed medication for him to take if needed. Following the hearing a letter dated 20 November 2023 from Dr Alamgir was provided which stated that the sponsor was previously diagnosed with depression and was on medication “on and off” and that he had recently been taking daily medication. A prescription dated 20 November 2023 in the sponsor’s name was provided. Mrs Taouk’s report is more than 12 months old however in the Tribunal’s view the depression, anxiety and stress described is likely to be ongoing pending finalisation of the visa application.

9. The sponsor told the Tribunal that living apart from the visa applicant causes him to experience stress, mental trauma and adverse physical health due to his diabetes and poor diet. He said he is unable to relocate to India because his 8 year old son resides in Australia and because he would not be able to find employment which would enable him to meet his financial obligations. He said if the visa applicant is permitted to live in Australia, all of these problems would cease to exist. He said the visa applicant is his life and he has finally found the right person to share his life.

10. The visa applicant told the Tribunal that the sponsor does not have anyone in Australia to look after him. She cited an incident of having an obstruction in his throat and the efforts made by her and his father and brother to obtain medical assistance for him.

    Consideration of the evidence.

11. Regulation 1.20J is concerned with preventing serial sponsorship. It allows sponsorship approval in circumstances where a sponsor has successfully sponsored more than one partner, only 'if the Minister is satisfied that there are compelling circumstances affecting the sponsor'. In this provision the compelling circumstances must specifically affect the sponsor.

12. The expression ‘compelling circumstances’ is not defined in the legislation.  Whether there are compelling circumstances affecting the sponsor is a matter of fact and degree for the Tribunal to determine.  The Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: Babicci v MIMIA [2004] FCA 1645 or are ‘so powerful that they lead the [Tribunal] to make a positive finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77.

13. Unlike other instances where compelling circumstances must be considered in the Regulations, in the context of r.1.20J those circumstances must affect the sponsor.  The legislative intention of this provision can be found in the Explanatory Statement which indicates that the Minister can approve sponsorships or nominations if ‘compelling circumstances’ exist. These include, but are not limited to:

    • The previous spouses, de facto partner or interdependent partner has died;
    • The previous spouse, de facto partner or interdependent partner has abandoned the sponsor or nominator and there are children requiring care and support;
    • The new relationship is long-standing; or
    • There are dependent children of the new relationship.

14. Other considerations include:

    • The nature of the hardship/detriment that would be suffered by the sponsor if the sponsorship were not approved; and
    • The extent and importance of the ties the sponsor has to Australia, and the consequent hardship/detriment that would be suffered if the sponsorship were not approved and the sponsor were to feel compelled to leave Australia to maintain their relationship with the applicant.

15. In Nagaki v MIBP the Court identified particular circumstances which of themselves could not constitute compelling circumstances in the context of reg 1.20J:

    ·The genuineness of the relationship between the applicant and sponsor could not, in and of itself, constitute a compelling circumstance affecting a sponsor. The Court commented that, were it otherwise, every applicant who demonstrated that they were a spouse for the purposes of cl 820.211(2)(a) would fall within the exception in reg 1.20J(2).[1]

    ·An applicant’s entitlement to fast-track the process of obtaining a Partner (Residence) visa on the basis of being in a partner relationship for three years or longer within the definition of ‘long-term partner relationship’ in reg 1.03, cannot amount to a compelling circumstance affecting the sponsor for reg 1.20J(2). The definition of long-term partner relationship in reg 1.03 has no statutory relevance or application for the purposes of reg 1.20J(2).[2]

    [1] Nagaki v MIBP [2016] FCCA 1070 at [58].

    [2] Nagaki v MIBP [2016] FCCA 1070 at [69].

16. The Tribunal has taken into account all of the matters put forward by the sponsor and is satisfied that there are compelling circumstances for waiving the requirements of Regulation 1.20J.  The Tribunal accepts that the sponsor acted in good faith in sponsoring his previous partners to Australia. The Tribunal has taken into account the sponsor’s mental health and the anxiety and stress he has experienced due to the delay in this application. The Tribunal considers that the circumstances faced by the sponsor are compelling not only because of his mental health but also because of his desire to have a family with the visa applicant and live together as a family. The Tribunal considers that were the sponsor to move to India to live with the visa applicant he is likely to experience financial hardship in obtaining remuneration similar to that which he has been able to obtain in Australia. The Tribunal has also placed weight on the length of the parties’ relationship which had endured despite significant periods of separation. In addition, separating him from his 8 year old son in Australia is an unreasonable burden to place on the sponsor.

17. Accordingly, the Tribunal is satisfied from the nature and degree of the particular circumstances discussed that there are compelling circumstances affecting the sponsor such that the sponsorship should be approved.  Therefore, cl.309.222 is met and the sponsorship is ongoing.

18. On the evidence before the Tribunal the visa applicant meets the requirements of cl.309.213 and r.1.20J for the purposes of cl.309.222.

19. 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 309 visa.

    DECISION

20. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.213 of Schedule 2 to the Regulations

    ·cl.309.222 of Schedule 2 to the Regulations

    Christine Kannis
    Member