Lin (Migration) - [2024] AATA 3893

Lin (Migration) [2024] AATA 3893 (16 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Jing Lin
Miss Danni Huang
REPRESENTATIVE:  Mr James Tan (MARN: 9686457)
CASE NUMBER:  2115616
HOME AFFAIRS REFERENCE(S):          BCC2019/3379837
MEMBER:Justin Meyer
DATE:16 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:
·Regulation 1.20J for the purpose of cl 820.221(4) of Schedule 2 to the Regulations.

Statement made on 16 September 2024 at 10:01am
CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – sponsorship limitations – a long-standing relationship – there is hardship leading to compelling circumstances – applicant and the sponsor have been in a spousal relationship for about seven years – medical condition of the sponsor – emotional support – sponsorship limitations in reg 1.20J should not apply – decision under review remitted
LEGISLATION
Migration Act 1958, ss, 5F, 65
Migration Regulations 1994, r 1.20J, Schedule 2, cls 820.211,820.221
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant (the applicant) applied for the visa on 5 July 2019 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820. 221(4) because:
Based on the information provided, I am not satisfied that you have demonstrated factors and/or compassionate and compelling circumstances to warrant a waiver of the sponsorship limitation for your Partner visa Application. As your sponsorship has not been approved, your application does not satisfy clause 820.221(4) of the Migration Regulations
The applicants appeared before the Tribunal on 27 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Yuksel Ozcelik, who is the applicants’ Partner and sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and Turkish and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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
Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include 820.211 (2)(c) which requires that the applicant was, at the time of application, 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 reg 1.03 of the Regulations).
At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl 820.221.
Approval of sponsorship is subject to limitations contained in reg 1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship, and in reg 1.20KA which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. There are further limits imposed by reg 1.20KB in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010, and reg 1.20KC for sponsors convicted of a relevant offence who have a significant criminal record in relation to the relevant offence where the visa application was made on or after 18 November 2016.
In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal. The information indicates that the applicant’s sponsor was the sponsor of two successful Partner visa applications. Therefore, the limitations of reg 1.20J apply. The applicant did not dispute this information but is seeking a waiver based on compelling grounds.
Regulation 1.20J is concerned with serial sponsorship and abuse of the partner migration provisions, but 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.
The meaning of ‘compelling circumstances’ in the context of reg 1.20J was considered by the Full Federal Court in Babicci v MIMIA[1]. The Court held that ‘on any view of the meaning of [compelling], the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the [provision] should be waived’. In Nagaki v MIBP[2], 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).
·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).
[1] Babicci v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 77
[2] Nagaki v Minister for Immigration & Anor [2016] FCCA 1070
However, this is not to say that the existence of a genuine long-term relationship could not form part of the circumstances which the decision-maker may find amount to compelling circumstances affecting the sponsor.
Departmental policy provides the following examples of compelling circumstances affecting the interests of the sponsor:
·     the previous partner has died;
·     the previous partner has abandoned the sponsor, and there are children dependent on the sponsor requiring care and support;
·     the new relationship is long-standing; or
·     there are dependent children of the new relationship.
·     Whether the parties are in a spouse or de facto relationship
The policy also identifies the following as relevant as relevant when considering waiving the bar on repeat sponsorship:
· 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.
Those examples are not exhaustive, and the Tribunal needs to consider the individual circumstances of each case.
The parties stated in writing that they met on 15 December 2016, through an introduction by a close friend. After entering into a relationship, the sponsor went into rehabilitation for bad back in February 2017. In March 2017 the visa applicant moved into the sponsor’s house with her daughter.
They cooked meals together and shared everything together as a couple. The sponsor applied for a public housing home and they moved into it in June 2017. They bought new furniture, and other household items.
The sponsor had a neck operation in June 2017. The visa applicant was there for him every day.
On 27 June 2017 the sponsor proposed marriage and was accepted.
In October 2017 the parties holidayed together Tasmania for 10 days. In December 2020 they holidayed again, but this time with the applicant’s daughter.
On the 21st of January 2018 the parties married in a simple wedding ceremony They had a celebratory dinner at a restaurant and a dozen close friends joined them. No photographs were taken.
Financial
They never have any issues with money, as there is trust. The visa applicant never spends money on needless things and will always talk to her sponsor if she needed anything. She helps the sponsor choose clothes and always make his clothes are clean and ironed, and he does the same for her as well when he can.
Before marrying they opened a joint bank account, as they were living together. It is used for most living expenses. The sponsor’s disability pension goes into an account in the sponsor’s name. Both hold a debit card linked to the one account.
They enjoy shopping together cleaning the home together. The sponsor works as a rideshare driver to earn some extra income - it is enough to cover family expenses. The visa is a massage therapist. The parties had planned to go for a trip to Turkey, but were thwarted by the pandemic.
Household
They shop together, sometimes eat out, watch movies at home, cook and watching cooking shows. They walk and exercise. During the pandemic their relationship became closer.
Social
Sometimes friends come over and have dinner together or a BBQ. They tend to hold hands as a sign of love and respect towards each other. They have made known their relationship to all mutual friends in social media such as in WeChat. Friends invite them to restaurants.
Commitment
The sponsor states that he wants to spend the rest of his life with the applicant. When the visa application is successful they plan to visit China to visit, the applicant’s finances permitting. They would like to travel to places in Australia.
The parties have visited Turkey to visit the sponsor’s family twice since the start of their relationship. in April 2022 for about one month and the second time in June/July 2023 for 1.5 months. Photos and flight itineraries were attached.
The applicant has met the sponsor’s mother, brother, sister, daughter from a previous relationship and nieces in Turkey. The parties will go to Turkey for the third time in September 2024 as one of the sponsor’s daughters is getting married in September.
They also have also visited many places in Victoria together.
Compelling circumstances
In the hearing the parties outlined the health complaints of the sponsor. He had been injured badly at work some two decades ago.
The parties have been together for seven years and this weighs in their favour.
The evidence in the hearing
The visa applicant is a 52-year-old Chinese national, who has had a previous marriage which ended in divorce. She told the Tribunal she had experienced abuse in that marriage. She and her former husband came to Australia under a business visa. Her daughter Miss Danni Huang is a secondary applicant in this case (she gave supportive evidence for her mother and stepfather and she has been adjusting to life in Australia over the last few years as migrant from China).
The visa applicant confirmed her employment details and the history of her husband. The parties had met through a social media platform introduction and quickly got along well, she said. She confirmed that they moved in together. They have been together seven years and have had no gaps in their relationship. Sometimes they quarrel but they move on quickly.
I explained the rule about serial sponsorship and asked what was compelling about this case. She said they were genuinely in love and had seven years where they rely on each other. They cannot live without one another she reiterated. Shopping, medical appointments, going on holidays – these were intertwined.
Her husband had health challenges. There were also language barriers but they could speak very simple English. And they understand one another in other ways. It was hard to find someone so in sync, she said. There would be hardship if she had to depart. Her husband needs the company of others. He needs to be taken to the doctors. He suffers from high blood pressure and diabetes. He had very significant back and neck surgery in the past. Occasionally he is unwell. He has restricted mobility because of his medical issues and his recovery had not been smooth. Together they walk or jog slowly.
If she left the country he might neglect his health. He had seen a psychiatrist in the past. The Tribunal noted that this was post his workplace injury and he had experienced significant depression and was not malingering per a psychiatrist’s report.
Thinking further about her possible departure from Australia I noted that the sponsor had children and asked if they could care for him. The visa applicant said that the children had not been helpful in the past.
The sponsor has been married several times before. One marriage broken down because a child was killed in car accident. Two ex-wives where of Turkish background and two were of Thai background. The fourth wife had a communication problem with the sponsor and there was an age gap. The sponsor felt abandoned in that relationship. He pays maintenance for his young child with this lady.
The visa applicant did not believe it was possible for her husband to live in China. There was the language barrier – he dd not speak Chinese and his health would not allow it. He could not get access to health care and would need to pay privately which he could never do.
The visa applicant’s daughter Miss Danni Huang who is a secondary applicant in this case also agreed that she did not think it possible for her stepfather to live in China. He could not cope she said. The medical costs for foreigners were very high.
The sponsor himself described his relationships past and said if pushed he would probably follow his wife back to China if the visa application was unsuccessful. His physical needs were the issue – he needed doctors every month and there was a high cost of medication, which was subsidised in Australia He was diabetic and had neck and back issues. The language barrier would be great.
The Tribunal asked if he was the kind of person who could live alone. He said he could if it were not for his health issues.
He felt that he was in a long-lasting relationship as it is about respect and love and they get along very well. They understand each other he said.
Reflecting on his previous relationships, he described his approach as haphazard. He is now wiser, and this is his longest relationship.
The visa applicant’s daughter was also a factor in this case as she had come to Australia as a teenager and it had taken time to adjust. Removing her to China would cause hardship and she would have no links with people there.
The representative made remarks about the apparent reason for the refusal being based on a lack of information, which apparently was incorrect as a detailed submission had been sent to the department well before the delegate’s decision. It appears that it may not have found its way to the delegate in time.
Findings
The Tribunal accepts the evidence that the applicant and the sponsor have been in a spousal relationship for about seven years, which is a long-standing relationship. The evidence before the Tribunal which the Tribunal accepts is that the couple provide mutual emotional, personal physical, and financial support to each other. The sponsor has had depression, PTSD and relationship issues including estrangement from his young child, and the visa applicant provides support, including emotional and financial. He is very reliant upon the applicant.
Both the applicant and the sponsor discussed the impact of having to depart Australia to live in China in case of the visa refusal. Of significance is the fact that the applicant has a 20-year-old daughter and the Tribunal considers her interests here. It is difficult to see how refusing the visa is in her best interest. Refusing the applicant’s visa would potentially mean significant hardship to the applicant as well as her daughter. This in turn would impact negatively upon the sponsor.
If the visa is refused, the couple essentially has two choices, separate or leave Australia. Either option would result in hardship. The written and oral evince is sufficient concerning to support my finding that there is hardship leading to compelling circumstances.
In consideration of the evidence as a whole, the Tribunal is satisfied that there are compelling circumstances affecting the sponsor such that the sponsorship limitations in reg 1.20J should not apply.
At time of application, the applicant must satisfy cl 820.211 by meeting the requirements of at least one of subclauses (1), (2), (2A), (2B), (5), (6), (7), (8), or (9). The delegate considered subclauses (1), (2A), (2B), (5), (6), (7), (8) and (9) of cl 820.211 and found that the applicant’s circumstances did not fall within those provisions. Consequently, the delegate found that the applicant did not satisfy any of them. The delegate assessed the application under subclause (2) of cl 820.211. At the time of application, the delegate accepted the evidence that the applicant and the sponsor were in a spouse relationship as defined by s 5F of the Act, that the sponsor was an Australian citizen who was over 18 years old, and that he provided a sponsorship form for the visa application. The delegate was therefore satisfied that the applicant met cl 820.211(2)(c) at the time of application. For the same reasons, the Tribunal finds that at the time of application, the applicant met cl 820.211(2)(c).
At the time of decision, the applicant must continue to be sponsored by the sponsor and the sponsorship must have been approved by the Minister and still in force. Clause 820.221(4) states that the sponsorship mentioned in cl 820.211(2)(c), (5)(f) or (6)(c) has been approved by the Minister and is still in force. Regulation 1.20J places limitations on approval of sponsorships. The limitations of reg 1.20J may be waived in certain circumstances.
In consideration of the evidence as a whole, the Tribunal is satisfied that there are compelling circumstances affecting the sponsor such that the sponsorship limitations in reg 1.20J should not apply. The Tribunal is therefore satisfied that the applicant meets the requirements of reg 1.20J for the purpose of cl 820.221(4).

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.
DECISION
The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:
·Regulation 1.20J for the purpose of cl 820.221(4) of Schedule 2 to the Regulations.
Justin Meyer
Member

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).