Liu (Migration)

[2022] AATA 3671

Liu (Migration) [2022] AATA 3671 (7 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ruishan Liu

REPRESENTATIVE:  Mr Alan Ng (MARN: 0574947)

CASE NUMBER:  2004639

HOME AFFAIRS REFERENCE(S): BCC2017/987375 BCC2020/1157914 BCC2020/1157979

MEMBER:Naomi Schmitz

DATE:7 October 2022

PLACE OF DECISION:  Melbourne

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 820.221 of Schedule 2 to the Regulations.

Statement made on 07 October 2022 at 2:07pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship approval – sponsor’s conviction for relevant offence and substantial criminal record – sexual offences, imprisonment and placement on sex offender register – reasonable to approve sponsorship – sponsor’s early life and circumstances of offending – non-compliance with reporting conditions – rehabilitation programs, length of time since offending and completion of sentence, and self-employment – history of relationship – registered civil partnership – applicant and family’s knowledge of sponsor’s history – applicant’s maturity, independence and influence on sponsor – credible and reliable evidence – decision under review remitted

MIGRATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.20J, 1.20K(4), 1.20KC(2)(a), (3), (4)(a), 1.20KD(1), Schedule 2, cls 820.211, 820.221

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 13 March 2017 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.221 because the applicant did not have sponsorship approved by the Minister and the sponsorship was not in force.

4. The applicant appeared before the Tribunal on 29 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing. The applicant was also represented by Mr Robert Lake of Counsel.

6. In support of the application for review the representative provided legal submissions and various annexures. During the course of the hearing further banking records were provided. After the hearing the applicant provided her Australian Taxation Notices of Assessment for the financial years ending 30 June 2019 to 2021.

7. Due to various issues raised in the delegate’s decision record, including adverse findings against the applicant and claims that could not be corroborated by the sponsor, the Tribunal in upholding its duty to assist and inquire, summonsed various documents from the New South Wales District Court and Victoria Police. These related to the sponsor’s criminal record and subsequent conviction.

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

   Consideration of claims and evidence

9. The issue in the present case is whether the applicant meets clause 820.221.

   Is the applicant sponsored?

10. Clause 820.211 requires at the time of application; the applicant meets one of several alternative sub criteria. These include 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).

11. 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.

12. 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.

13. Relevantly in the present case, reg.1.20KC(3) provides that the Minister must refuse to approve the sponsorship of a subclass 820 visa applicant if the sponsor has been convicted of a relevant offence or relevant offences and the sponsor has a significant criminal record in relation to the relevant offence or relevant offences.

14. A ‘relevant offence’ is defined in reg.1.20KC(2) as an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving any of the following matters:

    (a)  violence against a person, including (without limitation) murder, assault, sexual assault and the threat of violence; 

    (b)  the harassment, molestation, intimidation or stalking of a person;

    (c)  the breach of an apprehended violence order, or a similar order, issued under a law of a State, a Territory or a foreign country;

    (d)  firearms or other dangerous weapons;

    (e)  people smuggling;

    (f)  human trafficking, slavery, or slavery-like practices (including forced marriage), kidnapping or unlawful confinement;

    (g)  attempting to commit an offence involving any of the matters mentioned in paragraphs (a) to (f), or paragraph (h);

    (h)  aiding, abetting, counselling or procuring the commission of an offence involving any of the matters mentioned in paragraphs (a) to (g).

15. Pursuant to reg.1.20KD(1) a sponsor has a ‘significant criminal record’ in relation to a relevant offence or relevant offences if, for that offence or those offences:

    (a)  the sponsor has been sentenced to death; or

    (b)  the sponsor has been sentenced to imprisonment for life; or

    (c)  the sponsor has been sentenced to a term of imprisonment of 12 months or more; or

    (d)  the sponsor has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more. 

16. Subregulation 1.20K(4) provides that the Minister may decide to approve the sponsorship if the Minister considers it reasonable to do so, having regard to matters including the following (without limitation):  

    (a)  the length of time since the sponsor completed the sentence (or sentences) for the relevant offence or relevant offences; 

    (b)  the best interest of the following:

    (i)  any children of the sponsor;

    (ii)  any children of the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned;

    (c)  the length of the relationship between the sponsor and the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned.

17. The purpose of the above legislation is to protect visa applicants seeking to enter Australia on a partner visa from being sponsored by people with convictions for child sex or other serious offences indicating that the sponsor might pose a significant risk to the visa applicant or any child in their care. The amendments are also intended to strengthen the integrity of the visa program and improve support to visa applicants by giving the Department the ability to share the sponsor’s relevant offences with the visa applicant, so they can decide whether to continue with the visa application and be able to make this decision based on information that may be relevant to their future safety and well-being. The legislative provisions also allow the Department to refuse to approve the sponsorship for people with serious and violent criminal pasts, and thereby preventing a visa from being granted to potentially vulnerable people, particularly women and children.[1]

    [1] Explanatory Statement, Migration Legislation Amendment (2016 Measures No. 3) Regulation 2016

18. The sponsor concedes that he has been convicted of relevant offences described in reg.1.20KC(2) and that he has a significant criminal record as defined in reg. 1.20KD.[2]

    [2] Paragraph [18] of Applicant’s submissions dated 28 September 2022

19. The applicant provided to the Tribunal a National Police Certificate from the Australian Federal Police[3] confirming he has been convicted of:

    a.    Sexual intercourse with a person 14 years or over and under 16 years. Resentenced by the New South Wales (NSW) Court of Criminal Appeal on 15 April 2009 to 10 months imprisonment commencing on 23 August 2007;[4] and

    b.    Causing a child aged over 14 years and under 18 years to do an act of child prostitution. Resentenced by the NSW Court of Criminal Appeal on 15 April 2009 to four year and four months imprisonment with a non-parole-period of two years and six months to commence 23 February 2008.

    [3] Australian Federal Police National Police Certificate dated 13 September 2022

    [4] The sexual intercourse with a person 14 or over and under 16 years was a representative charge where the court took into account four other instances of sexual penetration between 18 and 25 April 2002. A representative charge allows a court to take into account other instances of uncharged offending. The offender must agree to the representative charge.

20. The sponsor pleaded guilty to the above offences and was sentenced to a total effective sentence of four years and 10 months imprisonment with a non-parole period of two years and six months. The sponsor became eligible for parole on 23 February 2010. The sponsor’s sentence expired on 23 June 2012. As a result, the sponsor was placed on the Sex Offender Register as a convicted sex offender for a period of 15 years.

21. The Tribunal is satisfied that the above offences are ‘relevant offences’ pursuant to reg.1.20KC (2)(a).

22. The issue therefore for the Tribunal to consider is whether it is reasonable, notwithstanding these convictions and significant criminal record, to approve the sponsorship, having regard to the matters referred to in reg 1.20KC(4) and any other relevant matters arising on the material.

    BACKGROUND TO RELVANT OFFENCES AND SIGNIFICANT CRIMINAL HISTORY

23. According to the Prosecution Agreed Statement of Facts, the victim was aged 15 years at the time of the offences and the sponsor was aged 23 years. The victim had known the sponsor for a short period of time. After an argument with her mother, the victim met up with the sponsor and spent several days with him, staying at various friends’ houses. Between 18 April 2002 and 25 April 2002, the victim and sponsor had sexual intercourse on a number of occasions, including both penile/vaginal and penile/anal, as well as the victim performing fellatio on the sponsor. During this time, the sponsor also persuaded the victim to prostitute herself which she did on two occasions in order to gain money.[5]

    [5] Statement of Agreed Facts R v Antioni Savatore aka Brendon Pagliari

24. The matter came to the attention of police after the victim’s mother reported the matter.[6] In the intervening period, the sponsor moved to Western Australia in December 2002 where he met his former wife and established a stable life, purchasing a home and commencing a car- parts importing business. Some years later, the sponsor was charged and extradited from Western Australia to New South Wales.[7] The sponsor was unaware that charges related to the offending had been laid against him prior to moving to Western Australia. As a result of the legal proceedings for the offences the sponsor had to sell their house and lost his business.

    [6] Evidence of sponsor at hearing

    [7] Court file from New South Wales District Court and sponsor’s evidence at hearing

25. Court records obtained from the New South Wales District Court disclose that the sponsor was born to immigrant parents, who divorced when he was approximately 12 months old. He has an older half-brother from his mother’s previous relationship. The sponsor has had no contact with his father. He had an unstable relationship with his mother. According to Department of Community Services documents, he resided with her until 1986, when a complaint of ‘incompetent guardianship’ was submitted to the Yasmar Children’s Court following allegations of physical and emotional mistreatment of himself and his brother. The Children’s Court removed the sponsor into the care of his maternal grandparents. His mother subsequently made an application to the court to the have the care order rescinded and the application was successful, and the sponsor was returned to her care in January 1990. Shortly after, at age of 12, the sponsor was made ward of the state.

26. The sponsor’s initial placement in foster care provided him with a secure and stable environment, however the placement subsequently deteriorated. The sponsor was subsequently moved into different homes, and he was unable to establish a stable living environment rotating amongst different foster carers, refuges, and relatives. His record as a juvenile appears to be a reflection of that period. The sponsor has a limited education having left school at year seven.[8]

    [8] Court file from New South Wales District Court

    SUBSEQUENT OFFENCES

27. As outlined in paragraph [20] the sponsor is a convicted sex offender. As a registerable sex offender, the sponsor has a statutory obligation to report certain matters to the Chief Commissioner of Police and to do so within statutory time limits. 

28. As part of the sponsor’s obligations, the sponsor is to make notification when he drives a particular motor vehicle on at least 14 days (whether consecutive or not) in any period of twelve months.[9]

    [9] Police Summary provided by Victoria Police

29. Between 8 January 2014 and 21 March 2014 the sponsor rented three hire vehicles from Avis Tullamarine Airport. During this time the motor vehicles accumulated approximately 26,000km. At the time of renting the vehicles, no additional drivers or persons were added to the contract indicating that the sponsor would be the sole driver. The sponsor failed to make notification as required as part of his statutory obligations. [10]

    [10] Ibid

30. On 30 July 2014 the sponsor pleaded guilty and was convicted in the Sunshine Magistrates’ Court on three charges of failing to comply with reporting obligations and was fined $300.[11]

    [11] Australian Federal Police National Police Certificate dated 13 September 2022

    CONSIDERATION OF CLAIMS

31. The applicant is a 35-year-old Chinese citizen. The sponsor is an Australian citizen and is currently aged 44-years.

32. The applicant and sponsor met in April 2014 in a food court shopping plaza. The applicant and sponsor commenced talking after the applicant was impressed by the sponsor’s chopstick skills and ultimately exchanged phone numbers. Over the following weeks the applicant and the sponsor went on various social outings together including dinner, the movies, and gaming arcades. This progressed with the applicant spending time at the sponsor’s home and staying overnight.

33. The applicant claims their relationship became serious and they decided to move in together on 11 September 2014. Since this time, they have cohabited at various properties, including rental properties leased in joint names. Multiple joint tenancy agreements confirm the same.

34. In September 2014 the applicant was involved in a serious motor vehicle accident, where she sustained significant physical injuries. The applicant stated that the event ‘tested the strength of our relationship’ as the applicant was self-employed and due to her physical injuries, she was unable to work. The sponsor was highly supportive of the applicant providing her with financial, emotional, and physical support, including driving the applicant to various physiotherapy and medical appointments.

35. On 3 February 2015, the applicant executed a will with the sponsor named as her executor and sole beneficiary. The sponsor also executed a will the same day naming the applicant as his executor and sole beneficiary. The applicant and sponsor have operated a joint account since 12 September 2016. Various banking records showing financial transaction histories confirm the same. On 29 August 2018 a Civil Partnership certificate pursuant to the Civil Partnerships Act 2011 (Qld) was issued in respect of the couple.

36. At the hearing both the applicant and sponsor gave evidence that the applicant is aware of the sponsor’s significant criminal history as a result of convictions for relevant offences. The applicant confirmed that despite this, she wished to proceed with the visa application. The Tribunal Member asked the applicant to tell the Tribunal what she knew of the relevant offending. The applicant stated the sponsor had spoken candidly about his convictions and she was able to provide an account consistent with paragraph [23] above. The applicant is also aware of the sponsor’s dysfunctional upbringing ‘moving between boys’ homes and his prior marriage.

37. The applicant also gave evidence that her family are aware of the charges the sponsor pleaded guilty to and his sentence and despite this they have fully accepted him into their family and support the applicant and sponsor’s relationship. The applicant and sponsor gave evidence that the applicant speaks to her mother at least every second day and her father twice a month and during these conversations the sponsor communicates with them, and he is recognised as the applicant’s de facto partner.

38. At hearing the applicant gave evidence that she does not require the protection afforded by regulation 1.20KC. She stated that she is well educated, speaks good English, and that she had already learnt English before her arrival as it was a requirement of her original visa. She also stated she comes from a well-educated family, including her father who was educated at an American University and that her family have a significant property portfolio. The Tribunal notes that although a Mandarin interpreter was present at the hearing, the applicant did not require the assistance of the interpreter. The applicant does not have any cognitive impairment or disability. The applicant does not have any child or children from a prior relationship or with the sponsor who require protection.

39. The applicant stated she arrived in Australia over 12 years ago in 2009 on a student visa. She completed her secondary school and university education in Australia, graduating from Griffith University with a Diploma in Hotel Management. Since her university she has been employed. In support the applicant provided her Australian Taxation Notices of Assessment for the financial years ending 2019 to 2021 evidencing an income of $18,300 in 2019, $9,979 in 2020 and $23,778 in 2021. The applicant explained she also receives financial support from her family.

1. The applicant currently operates a small business namely eight vendor machines selling food and drinks which operate from various commercial premises. Each week the applicant re-fills the food and drink products. They generate approximately $1000 to $1500 per month. The applicant also receives income from three rental properties in China which she shares the proceeds with her sister. The applicant also assists in the sponsor’s printing business, which involves printing on merchandise such as hats, t-shirts, hoodies, and cups. The applicant operates the heat press, and folds and packages merchandise. Banking records show the applicant currently has approximately $84,000.00 in cash.[12] Prior to the applicant’s car accident, she operated her own business as a massage therapist for four years. However, due to a lower back injury sustained in the accident she ceased the business.

   [12] ANZ and Commonwealth Bank of Australia banking records 29 September 2022

2. The applicant sought to highlight to the Tribunal Member that it was her that noticed the sponsor and initiated contact with him. It is not the case that the sponsor had travelled overseas and actively sought a vulnerable partner. To the contrary, she has been in an eight-year relationship on her own free will and volition. She stated she regards herself, as a ‘strong woman’ and that the sponsor listens and accepts her decisions ‘80% of the time’. The applicant and sponsor both gave evidence that the applicant has been a positive influence on the sponsor.

3. The applicant emphasised that she is a mature and independent woman and can make her own decisions. She referred to her extensive solo international travel, including return trips to China (to visit her father, other family members and attend her grandmother’s funeral) and Denmark (where her mother and sister reside) and Europe, including recently from June to August 2022. She stated that the sponsor has always been very caring towards her and that if he exhibited any violent or exploitative behaviour, she would know by now and would have left the relationship, including not returning after her overseas travel. Travel movement records obtained by the Tribunal corroborate the applicant’s claims that she has undertaken travel between 2014 to 2022 with each trip ranging between one and two months.[13] This is also consistent with visa documentation submitted by the applicant.

   [13] Travel movement records

4. The Tribunal notes in the applicant’s statutory declaration she states:[14]

   ‘…at no point in our relationship did I ever feel scared or threatened by [sponsor’s] actions at all…I don’t like to dwell on [sponsor’s] past as whilst I know he has made mistakes; I measure him by how far he has come from those mistakes…’. 

   [14] Statutory declaration of applicant 23 September 2022

5. At the hearing, the sponsor gave full and frank evidence about his offending. He appeared ashamed of his criminal history. The Tribunal Member asked the sponsor why he had changed his name three times subsequently. The sponsor denied it was to avoid detention of the index offences and explained it was because he had ‘screwed-up’ in the past and saw it as ‘starting fresh’ and that each name had a ‘bit of truth in it’ with it having some family historical connection. In relation to the subsequent offences, he stated he could not recall each occasion, but for at least one of the motor vehicles he hired it for a friend because he was aged 21 year and had been unable to get car insurance. This is consistent with the police summary (in relation to charge one) and in relation to charge three where the sponsor claimed he was unaware of the reporting condition. He stated he hired the motor vehicles as he had travelled from Queensland to Victoria and stayed with friends who also used the motor vehicles. 

6. The sponsor gave evidence that he used his time in custody to undertake rehabilitation programs, including a mandatory Sex Offender program for a duration of one-year, psychological counselling and worked in the prison textiles factory. He gave evidence that he complied with his parole conditions. The sponsor stated he has complied with his sex offender registration conditions except for the breach outlined in paragraph [29] above. He confirmed that he reports quarterly to the Queensland Police and only has two years remaining of his reporting conditions. He stated after his release he was on unemployment benefits for approximately five or seven years due to anxiety, but over the last two years has operated a printing business and prior to that did some motor vehicle repair work. The sponsor confirmed that he does not and never has had any substance abuse issues such as drugs or alcohol. The sponsor emphasised to the Tribunal Member that the applicant has been his pillar of support since his release from prison and that she has been a stable and positive influence.

   REPRESENTATIVE SUBMISSIONS

7. The representative submitted it was reasonable to approve the sponsorship as over 10 years had lapsed since the sponsor had completed his sentence (that would have concluded on 23 June 2012) and that this is a significant period, and well past any reasonable threshold that the legislature would have considered for the application of reg 1.20KC(4)(a).

8. That the applicant and sponsor have been in a lengthy relationship and that it is a genuine and continuing relationship, with the parties having a mutual commitment to the exclusion of all others. The applicant and sponsor have been a couple since April 2014 and in a more serious and committed relationship since moving in together in September 2014. This is supported by the applicant and sponsor’s viva voce evidence at hearing and other credible and independent evidence including banking records showing the joint operation of a bank account since 12 September 2016, a statutory declaration by Alan Plan who has known the applicant and sponsor for four years, executed wills, photographic evidence, relationship certificate and various residential tenancy agreements. The Tribunal also understands that the sponsor is accepted into the applicant’s family. On the Applicant’s contention at its highest it is an eight-year relationship; at its lowest it is a six-year relationship.

9. The applicant contends that she does not need the protection pursuant to reg 1.20KC. It is not a situation where a person with a recent criminal past involving either violence or exploitation is now seeking a relationship with someone who is vulnerable in order to be violent or exploitative toward them. Rather, the applicant has full knowledge of her sponsor’s offending, and despite his past has remained in a committed relationship with him. She has known him for eight years and they have been living together for at least six years. If the sponsor were violent or exploitative, she would know by now.

10. The applicant is an independent and mature person. She has travelled overseas and has had multiple opportunities to leave the relationship and decide not to continue with her application.

11. There is no objective evidence that the applicant now or in the past needed protection envisaged by reg 1.20KC. On the basis of the above factors the applicant satisfies cl. 820.221.

    FINDINGS and REASONS

12. The Tribunal has considered all the evidence carefully. Over 10 years have lapsed since the sponsor completed his sentences for the relevant offences. The Tribunal regards this as a significant period of time on which the Tribunal place some positive weight in the applicant’s favour. The Tribunal agrees with the representative’s submission that this is well past any reasonable threshold that the legislature would have considered for the application of reg 1.20KC(4)(a).

13. Of significance, the relevant offences were committed approximately 20 years ago, when the sponsor was an immature, young man, suffering from inferior decision making as a result of his dysfunctional, transient and unstable upbringing. The Tribunal notes the sponsor was not in a position of authority or trust during the offending, which would have been an aggravating factor. There has been a significant lapse in time since the relevant offending, which the Tribunal places in the applicant’s favour.

14. Although the sponsor has a subsequent conviction for failing to comply with his sex offender registration conditions, the Tribunal Member regards this offending as a minor breach and at the lower end of the spectrum given the short duration and the fact that it did not involve any preparatory conduct to contact offences or online child sex offences. According to the sponsor’s evidence at the hearing and the police summary, it appears to be an oversight or lack of understanding by the sponsor. Another matter of significance is the fact that the breach was over eight years ago and there has been a significant lapse of time. The sponsor has not committed any other subsequent offences and has no other pending criminal charges. Accordingly, the Tribunal places some positive weight in the applicant’s favour.

15. The Tribunal accepts that the sponsor has significantly changed and matured and now leads a stable and pro-social life, much to the credit of the applicant and his former wife who was also highly supportive and considered a ‘protective factor’ at the time of his sentence.[15] Court documents from the New South Wales District Court disclose that shortly after the offences, the sponsor turned his life around and he lived a law-abiding and productive life, purchasing a home and starting a business. He was considered a low-medium risk. The sponsor since his release and meeting the applicant has led a gainful life, commencing a business and hopes to marry and purchase a property with the applicant. The sponsor denied having or ever having any substance abuse issues such as drugs or alcohol and there is no evidence to the contrary. The sponsor used his time in custody productively to undertake multiple rehabilitative programs. The Tribunal Member is also of the view that the applicant would constitute a protective factor against any further offending including sexual, by meeting his intimacy needs and would be a positive influence on the sponsor. The Tribunal places some positive weight in the applicant’s favour.

    [15] Forensic Psychological Services Report by the New South Wales Department of Corrective Services dated 26 September 2007 – Suzanne Dumasia Psychologist and endorsed Craig Baird Psychologist (Forensic Psychologist Services – Sex Offender Programmes).

16. At the hearing, the sponsor gave frank evidence about his offending, and he appeared genuinely remorseful. The applicant has full knowledge of the sponsor’s criminal history and despite this she has given him her unwavering support and wishes to proceed with the application. The applicant’s family also know of the sponsor’s criminal history and despite it have accepted him into their family and maintain regular communication.

17. There are no children of the marriage or any prior relationship of the applicant or sponsor and therefore there are no children at risk.

18. The Tribunal places significant weight on the fact that the applicant and sponsor have been in a genuine and continuing relationship to the exclusion of all others for approximately eight years. The Tribunal accepts that there is an overwhelming body of evidence in support as outlined above.

19. The Tribunal does not consider the applicant as vulnerable or in need of protection. The visa applicant presented as a highly intelligent and mature woman aged 35 years. She is bi-lingual, educated, has an employment record and financial resources. She comes from a highly supportive family and has enjoyed a good standard of living in China. It is not the case that the applicant is seeking to escape an impoverished life, rather she seeks to remain in Australia to create a life with her de facto partner. Finally, the applicant and sponsor presented as highly credible and reliable witnesses.

20. On the evidence before the Tribunal the requirements of and cl.820.221 are met. 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.

21. 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

22. 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 820.221 of Schedule 2 to the Regulations.

    Naomi Schmitz
    Member