Mehta (Migration)
[2024] ARTA 847
•3 December 2024
Mehta (Migration) [2024] ARTA 847 (3 December 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Chintankumar Sureshkumar Mehta
Representative for the Applicant: Mr Umesh Wadhwa (MARN: 0901451)
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2214182
Tribunal:General Member Kate Malyon
Place:Sydney
Date: 3 December 2024
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;
·cl 820.221 of Schedule 2 to the Regulations; and,
·reg 2.03A.
I, General Member Kate Malyon, certify that this is
the Tribunal’s statement of decision and reasons.
Statement made on 3 December 2024 at 4:37 pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – withdrawal and reinstatement of sponsorship – families did not approve of the inter-cast relationship – DNA test results for the child – joint financial resources – supporting witness statements – compelling and compassionate circumstances – best interest of the Australian citizen child – decision under review remitted
LEGISLATION
Births, Deaths and Marriages Registration Act 1995 (NSW)
Family Law Act 1975 (Cth), s 55
Marriage Act 1961 (Cth)
Migration Act 1958 (Cth), ss 5, 56, 65, 359, 362
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.09, 1.15, 2.03
Privacy Act 1988 (Cth)CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
Paduano v MIMIA [2005] FCA 211
Plaintiff M64/2015 v MIBP [2015] HCA 50STATEMENT OF 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 7 September 2022 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, Indian national Mr Chintankumar Sureshkumar Mehta, applied for the visa on 10 November 2018 on the basis of his de facto relationship with his sponsor, Australian citizen Ms Bhumi Bhikhabhai Patel. At that time, Class UK contained only one subclass: Subclass 820 (Partner). Criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
3. The delegate refused to grant the visa on the basis that Mr Mehta did not satisfy cl 820.211(2)(a) of Schedule 2 to the Regulations because, after considering the limited evidence and information provided in relation to the matters prescribed under 1.09A of the Regulations as well as Ms Patel’s withdrawal of her sponsorship of Mr Mehta’s Subclass 820 Partner visa and then her reinstatement of that sponsorship, the delegate was not satisfied Mr Mehta was the de facto partner of Ms Patel. Details of the delegate’s reasons in this regard are set out below.
4. Following refusal of Mr Mehta’s Subclass 820 Partner visa application on 7 September 2022, an application for review was lodged with the Tribunal. Limited documentation was lodged by Mr Mehta and Ms Patel (hereinafter referred to as the couple) in support of the review application at the time it was filed with the Tribunal, apart from a copy of the delegate’s decision and the couple’s Marriage Certificate issued under the Marriage Act 1961 confirming their marriage at Granville NSW on 3 July 2022.
5. Subsequently, over 2 years later the couple lodged a bundle of documentation with the Tribunal. On 10 August 2024, they lodged the updated Birth Certificate issued 29 July 2024 of their daughter Kiana Patel born 8 December 2014 in Camperdown NSW confirming the couple are Kiana Patel’s parents as well as other documentation including recent evidence of photographs of the family and their travels overseas and interstate to well-known holiday destinations. The Tribunal received notification on 16 August 2024 of the appointment of the representative to assist the couple with their review application. The representative submitted additional documentation for consideration by the Tribunal including further photographs of the family, their recent travels and hotel bookings as well as some evidence of the couple’s bank statements and a further copy of the DNA results dated 10 May 2016 from Douglass Hanly Moir Pt Ltd T/A Sonic Genetics confirming the couple’s parentage of Kiana Patel. The DNA results had previously been lodged with the Department. A copy the updated Birth Certificate for Kiana Patel will be provided to the Department.
6. Following constitution of the matter to the Member, the couple were invited to attend the hearing on 25 October 2024. They were also invited pursuant to s 359(2) of the Act to provide a submission addressing the delegate’s reasons for refusing Mr Mehta’s Subclass 820 Partner visa application as well as current and updated probative evidence to address the requirements in reg 1.09A (De facto relationship) and reg 1.15A (Spouse) of the Regulations.
Hearing – 25 October 2024
7. Mr Mehta and Ms Patel appeared before the Tribunal on 25 October 2024 to give evidence and present arguments. Evidence was also received from the couple’s 9 year-old daughter Kiana Patel. The recently appointed representative also attended the hearing.
8. The Tribunal took independent evidence from Mr Mehta and Ms Patel during the hearing about their relationship history, the financial as well as social and household aspects of their relationship and the nature of their commitment to each other since their relationship started. It found both Mr Mehta and Ms Patel to be credible witnesses who gave their oral evidence in a thoughtful and authentic manner. It also acknowledges the warm and engaging evidence from their daughter Kiana Patel. Evidence provided at the hearing is discussed below.
9. Early in the hearing, the Tribunal observed that the Department’s file contains a certificate issued pursuant to s 376 of the Act dated 3 October 2022 (the s 376 Certificate). The effect of a valid s 376 certificate is that the Tribunal has a discretion to disclose the gist of the information the subject of the certificate in circumstances where disclosure would not be contrary to either s 362A of the Act or the Privacy Act 1988. In this case, the s 376 Certificate states that disclosure of material in relation to the Department’s Centrelink Referral Request and the outcome of that referral would be contrary to the public interest because it contains information given to the Minister in confidence.
10. The Tribunal opined that the gist of the information the subject of the valid s 376 Certificate in this case had been included in the Department’s s 56 letter dated 3 December 2020 which, amongst other issues, put to Mr Mehta information in relation to the addresses at which he and Ms Patel claimed to have lived as set out in Centrelink records. As such, the Tribunal noted that the couple were aware of the information the subject of the s 376 Certificate. Relevant to the Tribunal’s consideration of the issues on review, it notes that the delegate’s decision of 7 September 2022 states that the couple had ‘not responded or provided any documents’ as at the date of the delegate’s decision in response to the Department’s s 56 letter of 3 December 2020. However, as discussed below, this is inconsistent with information in the Department’s file and, further, the delegate’s decision makes reference to some documentation received.[1]
[1] BCC20184995437 CLD 2021/13651085 #10291083 received 10 May 2021
11. During the course of hearing, the Tribunal identified a number of outstanding documents that would assist it make a decision in this matter. After the hearing, the representative provided further documentation to address the concerns raised by the Tribunal during the hearing. Information provided is discussed below.
12. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. The Tribunal acknowledges that it has significantly more documentation (in total, nearly 600 pages) than that which was available to the delegate at the time of their decision and it also has the benefit of oral evidence at the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
13. The issue in the present case is whether Mr Mehta is the ‘de facto partner’ or ‘spouse’ of his sponsor Ms Patel both at the time of lodgement of the visa application and at the time of this decision. Relevant provisions of the Act and the Regulations referred to in this decision are set out in the Attachment to the decision.
Background
14. By way of context, it is evident that the couple’s relationship is not straightforward. Ms Patel was married in Sydney to her first husband Jignesh Patel on 19 January 2009 in a marriage which was arranged by her parents in India. However, she was not happy in that relationship and, when she met Mr Mehta in early 2009, they became good friends. Subsequently, in 2014 their friendship developed to a romantic affair which resulted in the birth of Kiana Patel on 8 December 2014. As noted in the delegate’s decision, a copy of which was provided to the Tribunal, the Birth Certificate first issued in respect of Kiana Patel and which was launched together with Mr Mehta’s application for a Contributory Parent Subclass 143 visa application (together with a copy of the Sonic Genetics’ DNA test result referred to above) states that Jignesh Patel is Kiana Patel’s father.
15. Mr Mehta married his first wife Milu Metha on 30 April 2015 in India in a marriage which was arranged by his parents in India. He explained to the Tribunal that he agreed to go through that arranged marriage only because he thought that he had no prospects whatsoever of living with Ms Patel and his daughter Kiana given her family’s insistence that, despite her ongoing marriage difficulties with her first husband, she must stay with Jignesh Patel.
16. The first marriages of each of Mr Mehta and Ms Patel were clearly unhappy and, following multiple arguments, each of these arranged marriages broke down. The couple had kept in touch throughout their troublesome first marriages. As set out in the couple’s signed statement lodged with the Department dated 9 May 2021 and reiterated during the hearing, the couple’s romantic affair faded after the birth of their daughter only because their respective families in India did not approve of the couple’s relationship. Ms Patel explained during the hearing that, for cultural reasons, an abortion was not on her agenda and nor did she ever consider having her child adopted: for her, Kiana Patel was a child born of love, her love of Mr Mehta. The couple had always kept in touch and, in June 2017, Ms Patel professed her love for Mr Mehta once he had separated from his first wife Milu Mehta. It was shortly thereafter, on 27 June 2017, that he applied for a Subclass 143 Contributory Parent visa with a view to remaining in Australia to live with Ms Patel and his daughter Kiana.
17. Mr Mehta claimed in his visa application that the couple’s de facto relationship began on 1 June 2017. As he explained during the hearing, at that time the couple were meeting albeit on an intermittent basis on Fridays, Saturdays and Sundays given Ms Patel was still married to Jignesh Patel and living in Schofields. Mr Mehta was living on his own in an apartment in Junction Street, Granville having separated from his first wife early in 2017. Milu Mehta lodged an application for divorce in the Family Court at Ahmedabad on 3 August 2017 which was approved on 18 December 2017 as confirmed by the Divorce Certificate lodged with the Department.
18. Subsequently, Mr Mehta applied on 10 November 2018 for a Subclass 820 Partner visa. At her parents’ insistence and despite her efforts to convince them otherwise, Ms Patel withdrew her sponsorship of Mr Mehta’s Subclass 820 Partner visa on 13 May 2019. However, despite her parents’ insistence that she must stay with her first husband, that relationship did not improve: it got worse. As confirmed by the Divorce Certificate issued by the Federal Circuit Court of Australia on 5 October 2020, Ms Patel divorced her first husband Jignesh Patel. The Divorce Certificate confirms that there are no children of the marriage to whom s 55A(3) of the Family Law Act 1975 applies: that is, relevant to this case, the Federal Circuit Court did not treat Kiana Patel is a child of the marriage of Ms Patel and her first husband Jignesh Patel as the Court was satisfied that she was not treated as their child at the relevant time.
19. In summary, the couple claim to have been in an on-off-on relationship from early 2014 to mid-2017 but have been together since then. Ms Patel told the Tribunal that she and her husband were in a relationship from 2017 but the fact that she was still married to Jignesh Patel at the time meant that she had to hide her relationship from her first husband and the general public. She had given birth to Mr Mehta’s daughter Kiana Patel on 8 December 2014 as confirmed by the Sonic Genetics’ DNA test results dated 27 May 2016 lodged with the Department. After their respective divorce from their first partner, Mr Mehta and Ms Patel were married at Granville NSW on 3 July 2022. The large wedding was attended by around 150 people including the couple’s daughter Kiana, family and friends in Australia as well as their respective families who came from India for the celebration.
20. After the hearing, the representative lodged a range of documentation including a signed Affidavit from Ms Patel’s parents in India dated 12 November 2024 confirming that they arranged their daughter’s wedding to Jignesh Patel, which was held in Australia. As explained by Ms Patel’s parents, consistent with their culture and traditional backgrounds, they prefer marriage to someone from the same social background. They felt that marrying someone within the same cast (that is, someone with the same surname) would preserve family traditions. However, they were aware their daughter was not happy with Jignesh Patel as she was in love with Mr Mehta. The representative submits, and the Tribunal accepts, that the Patel clan are an extremely close-knit community and that proposals of inter-cast marriages are rejected and face stiff opposition from family.[2]
[2] Family Matters: Transcending Old Traditions with the Patels | International Documentary Association
21. Further, Ms Patel’s parents confirm that their daughter tried to convince them for many years about the need for her to divorce Jignesh Patel but, whenever she talked about that, they forced her and pushed her to stay in the marriage rather than divorce him. As parents, they were worried about the social outcomes such as judgement from relatives and friends. However, they realised their daughter needed to be happy. After the COVID pandemic, they came to Australia to attend her wedding with Mr Mehta and, they are happy and more relieved now as their daughter is very happy with her husband, and their granddaughter Kiana is now more happy living with both of her parents. Evidence of each of Ms Patel’s parents’ signature has also been provided.
22. In addition, the representative provided a signed Affidavit dated 11 November 2024 from Mr Mehta’s parents confirming that they had arranged the marriage of their son to his first wife Milu Shah. She changed her name to Mia Mehta after her wedding to Mr Mehta. However, Mr Mehta was not happy in that relationship and, although they tried their best to persuade him to remain married to his first wife, it became clear that both their son and Milu Shah were unhappy about their relationship and they decided to end their marriage in a divorce. They opine that, in Indian society, divorce is a big stigma.
23. Mr Mehta’s parents state that they agreed to their son’s marriage to Ms Patel as they could not see any other option for a stable and happy life for him. They both were present at the couple’s wedding in Sydney and the whole family provided consent and blessing to the marriage, after much persuasion. They are very happy that their son and his wife Ms Patel are together and they are very attached to their granddaughter Kiana. Evidence of each of Mr Mehta’s parents’ signature has been provided .
Relevant law - Are the parties in a de facto or spouse relationship at the relevant time?
24. Clause 820.211(2) and cl 820.221 of Schedule 2 to the Regulations respectively require that, both at the time the visa application was made and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
25. At the time of application, Mr Mehta claimed to be in a de facto relationship with Ms Patel and, at the time of this decision, he claims to be Ms Patel’s spouse. Based on the evidence provided, the Tribunal accepts that Ms Patel is an Australian citizen. She was granted permanent residence in Australia as the holder of an Employer Nomination Scheme Subclass 186 visa on 20 February 2016 and, subsequently, was granted Australian citizenship on 26 June 2019. As noted above, the Tribunal has also received a copy of the NSW Marriage Certificate evidencing Mr Mehta married Ms Patel in Granville on 3 July 2022.
26. The term 'de facto partner' is defined in s 5CB of the Act. It provides that a person is in a de facto relationship with another person to whom they are not married if: they have a mutual commitment to a shared life to the exclusion of all others; the relationship is genuine and continuing; the couple must live together or, in the alternative, they do not live separately and apart on a permanent basis; and, the couple are not related by family: s 5CB(2) of the Act.
27. The word ‘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 they must not live separately and apart on a permanent basis: s 5F(2)(a)-(d) of the Act.
28. In forming an opinion about whether the parties are in a de facto or spousal relationship at the 2 relevant times, consideration must be given to all of the circumstances of the relationship. For de facto partners, this includes consideration of evidence of the financial and social aspects of the relationship, the nature of the parties’ household and their commitment to each other as set out in reg 1.09A(3) of the Regulations. To assess whether the parties are in a spousal relationship, this includes an assessment of the evidence set out in reg 1.15A(3) of the Regulations. The provisions of reg 1.15A(3) of the Regulations replicate the provisions in reg 1.09A(3). Both reg 1.09A(3) and reg 1.15A(3) of the Regulations are extracted in the Attachment to this decision. Each of the specific matters contained in reg 1.09A(3) and reg 1.15A(3) of the Regulations are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
29. Relevant to its review of the delegate’s refusal of Mr Mehta’s Subclass 820 Partner visa application, the Tribunal notes the following comments of Middleton J in Jayasinghe v MIMA [2006] FCA 1700 at para [35]:
Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.
Accordingly, in deciding this matter, the Tribunal has had regard to evidence of events that occurred subsequent to the date of lodgement of Mr Mehta’s visa application.
30. For ease, prior to its consideration of the time of application requirements, the Tribunal has considered the time of decision requirements set out in the legislation.
Are the parties currently in a de facto relationship or are they validly married?
31. At the time of this decision, if the parties are validly married, they may meet the requirements of a spousal relationship but not a de facto relationship.
32. The Tribunal has been provided with the NSW Marriage Certificate issued under the Births, Deaths and Marriages Registration Act 1995 (NSW) confirming that the couple were married on 3 July 2022 at Granville, NSW. Aa noted above, this is Mr Mehta’s second marriage. Lodged with the Department was the Divorce Decree issued by the Family Court at Ahmedabad in India on 3 August 2017 confirming Mr Mehta’s divorce from his first wife Milu Mehta (nee Milu Shah). Ms Patel was previously married to Jignesh Patel. The Department’s file also contains a copy of the Divorce Certificate issued by Federal Circuit Court of Australia on 5 October 2020 confirming Ms Patel’s divorce from Jignesh Patel. The couple’s Marriage Certificate confirms that each of them was previously divorced. There is nothing to suggest that the couple’s marriage is not valid.
33. Based on evidence provided, the Tribunal is satisfied that, at the time of this decision, the couple are married to each other under a marriage that is valid for the purposes of s 5F(2)(a) of the Act. A copy of the couple’s Marriage Certificate will be provided to the Department.
Are the other requirements for a spousal relationship currently met?
34. In forming an opinion on the matters required in s 5F(2)(b)-(d) of the Act regard must be had to all of the circumstances of the claimed relationship. This includes the factors identified in reg 1.15A(3) of the Regulations and any other circumstances relevant to the relationship under reg 1.15A(2) of the Regulations. The factors in reg 1.15A(3) of the Regulations are: the financial aspects of the relationship; the nature of the household; social aspects of the relationship; and, the nature of the persons’ commitment to each other. The Tribunal has considered whether these requirements are met.
Financial aspects of the relationship: reg 1.15A(3)(a)
35. When considering the financial aspects of the claimed spousal relationship, the Tribunal is required to have regard to: joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; and, any sharing of day-to-day household expenses.
36. The delegate noted no documentation whatsoever was provided to address the financial aspects of the couple’s relationship despite Mr Mehta claiming in his Subclass 820 Partner visa application that the couple ‘share some responsibilities’ and he ‘helps with Kiana’s financial needs’.
37. The Tribunal has been provided with evidence of the couple’s joint account with NAB (last 4 digits # 6554) (the NAB Joint Account) for the period from 4 February 2020 to 3 March 2020 addressed to the couple at an apartment in Junction Street, Granville and then from 1 January 2022 to 14 November 2024 by which time which time the couple had relocated to live at Ms Patel’s home in Bridge Street, Schofields. This is despite the representative’s submission in his post hearing submission that he has provided the NAB Joint Account statements ‘covering the whole of the period that it has been operational’. No bank statements have been provided prior to 4 February 2020 and, further, no bank statements have been provided for the 22 month period from 4 March 2020 to 31 December 2021. Review of information in the NAB Joint Account provided confirms Mr Mehta’s salary payments have been deposited to the account from his employers Wilson Parking, Transit Systems and Kinetic Group. The couple independently told the Tribunal that he also occasionally works as an Uber driver. The NAB Joint Account records also show regular transactions for family living expenses including payments for groceries, restaurants, chemists, Transport NSW, TPG internet expenses, utility bills and payments to the local Blacktown Council as well as loan repayments.
38. As explained by Ms Patel during the hearing, the home at Bridge Street, Schofields was originally owned by Ms Patel and her first husband Jignesh Patel. However, following their divorce on 5 October 2020, Ms Patel bought out her first husband’s interest. It was Mr Mehta and his father who advanced her funds to do so. Evidence was provided to the Tribunal of Mr Metha’s ANZ Account (last 4 digits #6755) (Mr Metha’s ANZ Account) from 20 December 2019 to 10 August 2020 as well as fund transfers confirming payments to Mr Metha from his father. Mr Mehta’s father in India transferred A$25,000 to his son to pass on to his daughter-in-law Ms Patel to assist her buy out her first husband’s interest in the property at Schofields. The Tribunal’s review of NSW Land Registry information confirms that Jignesh Patel transferred his interest in the property at Bridge Street, Schofields to Ms Patel on 25 March 2021. In addition, the NAB Joint Account confirms regular mortgage repayments. The Tribunal was also provided with a copy of Ms Patel’s personal NAB account (last 4 digits # 3435) (Ms Patel’s NAB Account) for the period 23 January 2024 to 22 July 2024 confirming salary payments for her current work in the HR Department of TJX Australia’s Fashion Factory at Marsden Park, mortgage loan repayments, common household expenses and also payments for personal items such as home yoga.
39. The Tribunal accepts that the multiple bank statements provided demonstrate that Mr Mehta and Ms Patel essentially pool their financial resources and share day-to-day household expenses. The financial records provided also confirm receipt of funds transferred to the couple’s NAB Joint Account for Ms Patel to repay her mortgage, which is currently with the Bank of Queensland. In addition, the Tribunal has been provided with evidence of the current balance of the couple’s loan secured over Ms Patel’s property in Bridge Street, Schofields. Although the NSW Land Titles Office search confirms that Ms Patel is the sole registered proprietor of the property, the borrowers are identified as both Mr Mehta and Ms Patel. The couple’s liabilities total $722,000. The Tribunal accepts that the couple each operate their own personal accounts, being Mr Mehta’s ANZ Account and Ms Patel’s NAB Account, which confirm payments for household expenses as well as contributions to mortgage loan repayments.
40. The Tribunal has also been provided with evidence of Mr Mehta’s superannuation fund with Hostplus confirming that Ms Patel is the 100% beneficiary of his fund. In addition, evidence has been provided of Mr Mehta’s ownership of a Toyota Rav4 cruiser which confirms he and Ms Patel are listed as drivers of that car which is garaged at the family’s home in Bridge Street, Schofields. Although during the hearing Ms Patel agreed to submit to the Tribunal evidence of her ownership of a Toyota Corolla Cross automobile as well as details in relation to the nominated beneficiary of her superannuation fund, no such evidence was provided.
41. Based on the evidence provided, including oral evidence at the hearing, and notwithstanding Ms Patel’s failure to provide documentation referred to above at para [40], the Tribunal is satisfied that the financial aspects of the couple’s relationship are indicative of a couple in a in a spousal relationship at the time of this decision.
Nature of the household: reg 1.15A(3)(b)
42. Regulation 1.15A(3)(b) requires the Tribunal to consider the nature of the parties’ household including any joint responsibility for care and support of children, their living arrangements and any sharing of housework.
43. The Tribunal accepts that the couple have been living together now for a number of years at the family home in Bridge Street, Schofields. Whilst it is not clear the exact date when Mr Mehta moved in with Ms Patel and the couple’s daughter, the Tribunal accepts that they have been living at their current home in Bridget Street, Schofields as a family since it least mid-2020 in the lead up to Ms Patel’s divorce from her first husband. The Parramatta office of the Federal Circuit Court of Australia ordered Ms Patel’s divorce from her first husband take effect from 5 October 2020. In the circumstances, the Tribunal accepts that the couple have been living together for at least 4 years as at the time of this decision.
44. While the delegate accepted the DNA results issued 10 May 2016 that Mr Mehta is the biological father of Kiana Patel, the delegate noted that Jignesh Patel’s name was listed as the father of Kiana Patel on her Birth Certificate lodged by Mr Mehta in support of his Contributory Parent Subclass 143 visa application which was lodged on 27 June 2017. Concerns were raised by the delegate in relation to Mr Mehta’s legal access to the child. Further, as set out in the delegate’s decision, according to the letter from Child Support issued 24 July 2017 regarding support provided by Mr Mehta as part of his Contributory Parent Subclass 143 visa application, he stated that he has 0% care of his daughter Kiana from 16 March 2015 yet Ms Patel has 100% care of the child and 100% cost percentage. Cumulatively, this information raised concerns for the delegate regarding Mr Mehta’s claimed financial support for his daughter. Despite the delegate requesting further information to address this issue in a letter on 3 December 2020, the delegate’s decision notes that no response was received to this invitation. Although the couple submitted a signed response on 9 May 2021 to the Department’s s 56 request for information of 3 December 2020, their response does not address this issue raised by the delegate: rather, it addresses details of the couple’s relationship summarised above in paras [14] – [19].
45. During the hearing, the couple independently told the Tribunal that Ms Patel essentially does the family’s cooking while Mr Mehta does the gardening and cleaning of the house including mopping. Mr Mehta drops the couple’s daughter off at Schofields Public School in the morning as Ms Patel starts work very early, leaving home before 6:00 am. She collects her daughter in the afternoon. Ms Patel confirmed that her husband takes care of the couple’s daughter Kiana Patel when she is not there and that he has always been there to provide ongoing care to Kiana for nearly 10 years. After the hearing, the representative provided a signed letter from the Business Manager of Schofields Public School dated 14 November 2024 confirming that Mr Mehta attends parent teacher meetings with his daughter’s teacher.
46. In her oral evidence at the hearing, Kiana Patel confirmed that her father does, and always has, taken care of her. She loves to go on the holidays that he has organises for the family such as the Gold Coast and Cairns in Queensland as well as their trip to Bali for a week in May 2024. Her father also takes her to the beach in Sydney. The Tribunal acknowledges multiple photographs of Mr Mehta, Ms Patel and the couple’s daughter at various well-known holiday locations. Mr Mehta and Ms Patel essentially echoed their daughter’s evidence of the close familial relationship that they all share.
47. Having regard to evidence provided, including oral evidence at the hearing as well as comments in statements from family and friends, the Tribunal is satisfied that the nature of the couple’s household is indicative of a couple in a spousal relationship at the time of this decision.
Social aspects of the relationship: reg 1.15A(3)(c)
48. In its consideration of the social aspects of the parties’ relationship the Tribunal is required to consider: whether the parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and, any basis on which the persons plan and undertake joint social activities.
49. The delegate found that, while claiming that the couple’s ‘common friends are aware of’ their relationship, no documentary evidence other than limited photographs was provided. Although the delegate made their decision on 7 September 2022, no information had been provided to the Department in relation to the couple’s marriage at the Grand Royale Hotel in Granville on 3 July 2022. As confirmed by the photographic evidence provided, the wedding was attended by multiple family and friends including the parents of each of Mr Mehta and Ms Patel, all of whom had flown in from India for the event. In all, nearly 150 people attended the couple’s wedding. The photographic evidence provided to the Tribunal indicates the couple have met each other’s friends and families, travelled together and undertaken numerous joint social activities.
50. Lodged with the Tribunal prior to the hearing was a Form 888 Statutory Declaration by supporting witness in relation to a Partner or Prospective Marriage visa application from the couple’s long-standing friend Vishal Manilal Patel sworn 28 May 2024. After the hearing, the representative provided further Forms 888 from friends:
1)Ashish Navinbahi Patel, who was also a former colleague of Mr Mehta, sworn 11 November 2024;
2)Kajal Patel (Ashish Navinbahi Patel’s wife) sworn 11 November 2024;
3)Naitikkumar Mahendrabhai Shah sworn 11 November 2024; and,
4)Nirupaben Vishal Patel sworn 7 November 2024. Nirupaben Vishal Patel used to work at a hotel in Surry Hills with the couple and also lived with them in Strathfield in 2009.
Evidence of each of the declarant’s Australian citizenship and signature was also provided. Without exception, all of the signed Forms 888 warmly attest to the genuineness of the couple’s long-standing relationship dating back to the time when they first met in 2009.
51. During the hearing, the Tribunal noted it had not been provided with any evidence of the couple declaring their spousal relationship to government agencies such as the Australian Taxation Office (ATO). It invited them to submit evidence of lodged tax returns downloaded from the ATO’s website. In response, the Tribunal has been provided with evidence of each of the couple declaring their spousal relationship to ATO in their draft Tax Returns for years ended 30 June 2023 and 30 June 2024 which have been prepared with the assistance of their Accountant. The Tribunal has some concern that the couple’s tax returns for the year ended 30 June 2023 appear not to have been lodged with the ATO. The Department may wish to refer the couple’s apparent late lodgement of their 30 June 2023 returns to the ATO for further investigation. The Tribunal notes it was provided with evidence of Ms Patel’s notification on 4 November 2024 to Centrelink of her marital status to Mr Mehta.
52. The Tribunal has also been provided with multiple photographs of the couple’s wedding including photos with their daughter Kiana Patel and respective parents on 3 July 2022. Also is provided are numerous photographs of the couple at various locations with family and friends including their daughter Kiana Patel on holidays at the Gold Coast, Port Macquarie, Nelson Bay and Kiama, in the snowfields at Smiggins Holes and attending Diwali celebrations. Helpfully, most of the photographs have been captioned with dates and Apple iPhone locations.
53. Having regard to the extensive probative evidence provided, including letters of support and Forms 888 from family as well as statements from friends in Australia and oral evidence at the hearing, the Tribunal is satisfied that the couple represent themselves to family and friends as being in a genuine spousal relationship and that they undertake joint social activities.
Nature of persons' commitment to each other: reg 1.15A(3)(d)
54. In its consideration of the nature of the persons' commitment to each other the Tribunal is required to consider: the duration of the relationship; the length of time the parties have lived together; the degree of companionship and emotional support they draw from each other; and, whether they see the relationship as long term.
55. After reviewing the limited evidence provided, the delegate was not satisfied that Mr Mehta and Ms Patel provide each other with the level of companionship and emotional support indicative of a joint commitment to a shared life together.
56. The Tribunal accepts that Mr Mehta and Ms Patel have been a couple for over 4 years since mid-2020 when they started living together with their daughter Kiana Patel as a family unit at Ms Patel’s home in Schofields. The couple independently told the Tribunal that they rely on each other for support. Ms Patel added that Mr Mehta has always been a positive influence in her life as he has always been there to help her with their daughter. She explained that, following her divorce from her first husband on 5 October 2020, the couple had no choice but to delay their wedding due to the COVID-19 pandemic because they wanted their respective family members to come from India for the wedding and the closure of country borders meant that this could not sooner.
57. Ms Patel and Mr Mehta independently told the Tribunal that they undertake social activities and attend events with their friends, including picnics, going out to restaurants as well as celebrating Diwali, Christmas and New Year together. They also love travelling as a family together. The Tribunal acknowledges multiple captioned photographs have been provided confirming this information together with tickets confirming their travels interstate and overseas.
58. In relation to the couple’s future financial plans, the couple independently confirmed that their main focus is to pay off the home at Bridge Street, Schofields. The Tribunal was provided with a Loan Disbursement Advice dated 8 November 2024 confirming a loan of $722,000 to the couple as borrowers with Ms Patel’s home in Schofields as security for the loan.
59. The Tribunal noted its review of the Department’s file indicated that a Form 40SP Sponsorship for a partner to migrate to Australia had not been provided, despite the delegate’s multiple requests to do so. It acknowledged that review of the Department’s file confirmed that the couple did not appear to have the benefit of professional advice. After the hearing, the representative provided a signed Form 40SP from Ms Patel dated 28 November 2024. The Tribunal will provide the Department with Ms Patel’s Form 40SP.
60. The Tribunal accepts the claims of Mr Mehta and Ms Patel that, throughout the near 10 years since the couple’s daughter Kiana Patel was born and throughout their time living together as a family unit, they have provided emotional support and companionship to each other. It also accepts that they see their relationship as long term.
Overall assessment of the spousal relationship
61. Based on the extensive evidence as to the couple’s financial and social aspects of their relationship as well as the nature of their household arrangements and their strong commitment to each other, the Tribunal is satisfied that, at the time of its decision, Mr Mehta and Ms Patel are in a genuine spousal relationship.
62. The Tribunal is satisfied that Mr Mehta and his wife Ms Patel are married to each other in a marriage that is valid for the purposes of the Act. It also is satisfied that the couple have a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship between them is genuine and continuing and, further, that they now live together and do not live separately or apart on a permanent basis. Accordingly, the requirements in s 5F(2)(a)-(d) of the Act are met at the time of this decision.
63. Therefore, Mr Mehta meets the time of decision criterion in cl 820.221 of Schedule 2 to the Regulations.
Are the additional criteria for a de facto relationship met at the time of application?
64. As noted above, at the time of application on 10 November 2018, Mr Mehta claimed to be in a de facto relationship with Ms Patel. The couple’s marriage did not occur until 3 July 2022. In the circumstances, the Tribunal must consider whether the additional criteria for a de facto relationship have been met as at the time of lodgement of Mr Mehta’s Subclass 820 Partner visa application: reg 2.03A of the Regulations. Relevant to this case, there are 2 matters for the Tribunal’s consideration.
65. First, both members of the couple must be at least 18 years old: reg 2.03A(2) of the Regulations. In this case, at the time of the application it is evident that both Mr Mehta and Ms Patel were at least 18 years old.
66. Second, the visa applicant must have been in the de facto relationship for at least the period of 12 months ending immediately before the date of the visa application: reg 2.03A(3) of the Regulations. This requirement does not apply in limited circumstances, such as:
1)where the de facto relationship has been registered under a relevant State or Territory law: reg 2.03A(5) of the Regulations;
2)the applicant can establish compelling and compassionate circumstances for the grant of the visa: reg 2.03A(3)(b) of the Regulations; or,
3)in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa: reg 2.03A(4) of the Regulations.
67. Relevant to the circumstances of this case, the couple acknowledge that they did not register their relationship under a relevant State or Territory law in the 12 months prior to lodgement of Mr Mehta’s Subclass 820 Partner visa application. Further, the sponsor Ms Patel does not hold, has not held and nor is she applying for a permanent humanitarian visa.
68. In relation to whether the couple lived together for 12 months prior to lodgement of Mr Mehta’s visa application, the delegate found that a joint household had not been established in that time. As noted in the delegate’s decision, a copy of which was provided to the Tribunal, Mr Mehta claimed in his visa application to reside at an apartment in Junction Street, Granville and that he had lived there since 9 June 2015. However, Ms Patel’s Centrelink records confirm she had resided at an apartment in Everton Road, Strathfield from 1 February 2016 to 12 March 2018. As such, the delegate found that the couple were not living together at the time the claimed de facto relationship commenced on 1 June 2017. Further, Ms Patel had advised Centrelink that she commenced living at Bridge Street, Schofields from 12 March 2018 but Mr Mehta had declared to Centrelink he lived at that address since 17 November 2020: that is, 2½ years after the claimed de facto relationship commenced on 1 June 2017.
69. Although the Tribunal specifically requested in its hearing invitation a detailed submission from the couple addressing all of the issues raised by the delegate in their decision, no information was provided to the Tribunal prior to the hearing to address these concerns. At the hearing, the representative apologised for shortcomings in this regard.
70. Ms Patel told the Tribunal at the hearing that she and her first husband Jignesh Patel bought the vacant land at Bridge Street, Schofields in late 2015 or early 2016. Subsequently, after they built a house on the property, she and Jignesh Patel moved into the house sometime late in 2016 or early 2017. The Tribunal’s review of records held by the NSW Land Registry confirms that the land at Bridge Street, Schofields was sold to Ms Patel and Jignesh Patel on 9 January 2016. Following her divorce from her first husband on 5 October 2020, the property was transferred to Ms Patel as the sole registered proprietor on 25 March 2021.
71. Based on its review of information in the Department’s file as well as the bank statements and utilities notices provided to the Tribunal, the Tribunal is not satisfied that Mr Mehta moved in to live with Ms Patel at her Schofields home on 1 June 2017. Further, based on available evidence, the Tribunal does not accept that the couple lived together from 10 November 2017 to 10 November 2018: that is, for the 12 months before lodgement of Mr Mehta’s Subclass 820 Partner visa application. Having regard to available evidence, including oral evidence at the hearing, it appears to the Tribunal that Ms Patel and Mr Mehta started living together at Bridge Street, Schofields in mid-2020, or possibly early 2020, in the lead up to Ms Patel’s divorce from her first husband.
72. In the circumstances, the Tribunal has considered whether Mr Mehta can establish compelling and compassionate circumstances for grant of the visa as required by reg 2.03A(3)(b) of the Regulations. The term ‘compassionate and compelling circumstances’ is not defined for in the legislation. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of the word ‘compelling’ means ‘forceful’ and, therefore, convincing: see Paduano v MIMIA [2005] FCA 211. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others. For the following reasons, the Tribunal satisfied that the exception in reg 2.03A(3)(b) to the Regulations is met in this case.
73. The couple has provided evidence that Mr Mehta and the sponsor Ms Patel have are the parents of Kiana Patel who was born on 8 December 2014 at Royal Prince Alfred Hospital in Camperdown. The Tribunal accepts that Mr Mehta and Ms Patel have a daughter who is an Australian citizen and that she is about to turn 10 years of age. It accepts that it is in the best interest of a minor child to have a meaningful relationship with both parents. The Tribunal also accepts that a child requires the love, care and support of both parents. Accordingly, the Tribunal is satisfied that Mr Mehta has established that there are compelling and compassionate circumstances for grant of the visa to him.
74. For the reasons outlined above, the Tribunal is satisfied that Mr Mehta meets the additional criteria prescribed in reg 2.03A of the Regulations for the purposes of meeting the requirements of a de facto relationship as at the time of lodgement of the visa application. The Tribunal also notes that, had it been unable to make this finding, it would have had regard to the dicta of Middleton J in the case of Jayasinghe v MIMA [2006] FCA 1700 referred to above at para [29] that it is appropriate for the Tribunal to have regard to evidence of events that have occurred subsequent to the date of lodgement of Mr Mehta’s visa application.
Conclusion
75. Given the findings outlined above, the Tribunal is satisfied that, at the time the visa application was made Mr Mehta was in a de facto relationship with his sponsor Ms Patel as required by cl 820.211 of Schedule 2 to the Regulations.
76. Further, the Tribunal is satisfied that, at the time of this decision, the couple are in a spousal relationship as required by cl 820.221 of Schedule 2 to the Regulations. In these circumstances, the appropriate course is to remit the visa application to the Minister to enable consideration of the remaining criteria for a Subclass 820 Partner visa.
77. The Tribunal will provide the Department with Ms Patel’s Form 40SP Sponsorship by a partner to migrate to Australia dated 27 November 2024, a copy of the couple’s Marriage Certificate and the updated NSW Birth Certificate for Kiana Patel confirming Mr Mehta is her father.
DECISION
78. 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;
·cl 820.221 of Schedule 2 to the Regulations; and,
·reg 2.03A of the Regulations.
Kate Malyon
MemberDate(s) of hearing: 25 October 2024
ATTACHMENT - Extracts from Migration Act 1958 and Migration Regulations 1994
Migration Act 1958
5CB De facto partner
(1) De facto partner For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
(2) De facto relationship For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a) they have a mutual commitment to a shared life to the exclusion of all others; and
(b) the relationship between them is genuine and continuing; and
(c) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d) they are not related by family (see subsection (4)).
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
(4) Definition For the purposes of paragraph (2)(d), 2 persons are related by family if:
(a) one is the child (including an adopted child) of the other; or
(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c) they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
…
5F Spouse
(1) For the purposes of this Act, a person is the spouseof another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.
…
Migration Regulations 1994
…
1.09A De facto partner and de facto relationship
(1)For subsection 5CB(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB(2) (a), (b), (c) and (d) of the Act exist.
Note 1 See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person whether of the same sex or a different sex) if the person is in a de facto relationship with the other person. Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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).
…
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).
…
2.03A Criteria applicable to de facto partners
(1) In addition to the criteria prescribed by regulations 2.03 and 2.03AA, if a person claims to be in a de facto relationship for the purposes of a visa application, the criteria in subregulations (2) and (3) are prescribed.
(2) If a person mentioned in subregulation (1) applies for a visa:
(a) the applicant is at least 18; and
(b) the person with whom the applicant claims to be in a de facto relationship is at least 18.
(3) Subject to subregulations (4) and (5), if:
(a) a person mentioned in subregulation (1) applies for:
(i) a permanent visa; or
(ii) a Business Skills (Provisional) (Class UR) visa; or
(iia) a Business Skills (Provisional) (Class EB) visa; or
(iib) a Skilled Employer Sponsored Regional (Provisional) (Class PE) visa; or
(iii) a Student (Temporary) (Class TU) visa; or
(iv) a Partner (Provisional) (Class UF) visa; or
(v) a Partner (Temporary) (Class UK) visa; or
(vi) a General Skilled Migration visa; and
(b) the applicant cannot establish compelling and compassionate circumstances for grant of the visa;
the Minister must be satisfied that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application.
(4) Subregulation (3) does not apply if the applicant applies on the basis of being:
(a) in a de facto relationship with a person who:
(i) is, or was, the holder of a permanent humanitarian visa; and
(ii) before the permanent humanitarian visa was granted, was in a de facto relationship with the applicant and informed Immigration of the existence of the relationship; or
(b) in a de facto relationship with a person who is an applicant for a permanent humanitarian visa.
(5) Subregulation (3) does not apply if the de facto relationship is a registered relationship within the meaning of section 2E of the Acts Interpretation Act 1901.
..
Schedule 2
Subclass 820 -- Partner
820.21- Criteria to be satisfied at time of application
820.211 (1) The applicant:
(a) is not the holder of a Subclass 771 (Transit) visa; and
(b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and
(b) [repealed]
(c) the applicant is sponsored:
(i) if the applicant's spouse or de facto partner has turned 18 - by the spouse or de facto partner; or
(ii) if the applicant's spouse has not turned 18 - by a parent or guardian of the spouse who:
(A) has turned 18; and
(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d) in the case of an applicant who is not the holder of a substantive visa - either:
(i) the applicant:
(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) satisfies Schedule 3 criterion 3002; or
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
…
820.22 - Criteria to be satisfied at time of decision
820.221 (1) In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:
(a) continues to meet the requirements of the applicable subclause; or
(b) meets the requirements of subclause (2) or (3).
(2) An applicant meets the requirements of this subclause if the applicant:
(a) would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and
(b) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and
(c) has developed close business, cultural or personal ties in Australia.
(3) An applicant meets the requirements of this subclause if:
(a) the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and
(b) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;
(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.
Note: For special provisions relating to family violence, see Division 1.5.
(4) If paragraph 820.211(2)(c), (5)(f) or (6)(c) requires the applicant to be sponsored:
(a) the sponsorship has been approved by the Minister and is still in force; and
(b) the sponsor has consented to the disclosure by the Department, to each applicant included in the sponsorship, of any conviction of the sponsor for a relevant offence (within the meaning of subregulation 1.20KC(2)).
Note 1: Regulations 1.20J, 1.20KA, 1.20KB and 1.20KC limit the Minister's discretion to approve sponsorships.
Note 2: The sponsor may be asked to consent to the disclosure mentioned in paragraph (b) on the approved form required to be completed by the sponsor in relation to the visa application.
(5) For the purposes of subclause (4), the conviction of the sponsor for a relevant offence is to be disregarded if:
(a) the conviction has been quashed or otherwise nullified; or
(b) both:
(i) the sponsor has been pardoned in relation to the conviction; and
(ii) the effect of that pardon is that the sponsor is taken never to have been convicted of the offence.
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