Naiyaga (Migration)

[2024] AATA 2786

Naiyaga (Migration) [2024] AATA 2786 (4 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sunia Naivuwai Naiyaga

REPRESENTATIVE:  Mr Nigel James Dobbie

CASE NUMBER:  2200997

HOME AFFAIRS REFERENCE(S):          BCC2019/188625

MEMBER:Tegen Downes

DATE:4 July 2024

PLACE OF DECISION:  Brisbane

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(2) of Schedule 2 to the Regulations

·cl 820.221(3)(a) and b(ii) of Schedule 2 to the Regulations

·reg 2.03A

Statement made on 04 July 2024 at 9:50am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine de facto relationship – Schedule 3 criteria – application lodged outside of relevant timeframe – waiver of requirement – ‘compelling reasons’ – Australian citizen children – relationship ceased – ongoing legal rights or obligations in respect of a child – parenting orders – decision under review remitted

LEGISLATION
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), rr 1.09A, 1.20, 2.03A; Schedule 2, cls 309.211, 309.221; Schedule 3, Criterion 3001

CASES
Babicci v MIMIA (2005) 141 FCR 285
He v MIBP [2017] FCAFC 206
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
Waensila v MIBP [2016] FCAFC 32

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 section 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 24 January 2019 based on his relationship with his 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).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.221(2) of Schedule 2 to the Regulations because at the time of the delegate’s decision, the relationship between the applicant and his sponsor had ended. The delegate was also not satisfied on the evidence before them that any of the alternative visa criteria applied.

4. The applicant was represented in relation to the review. The representative provided comprehensive written submissions and supporting evidence, which were of great assistance to the Tribunal.

5. I did not invite the applicant to appear before the Tribunal because I considered that I should decide the review in the applicant’s favour based on the material before me.

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

   ISSUES

7. The first issue in this review application is whether, at the time of application, the applicant met the criteria for the grant of the visa set out in cl 820.211(2), namely that:

   a.The applicant was the ‘de facto partner’ of an Australian citizen;

   b.The applicant was sponsored by their ‘de facto partner’; and

   c.If the applicant did not hold a substantive visa at time of application, that he satisfied certain Schedule 3 criteria, unless there are compelling reasons for not applying those criteria.

8. If the first issue is determined in the applicant’s favour, the next issue is whether, at the time of decision, for the purposes of clause 820.221(3)(b)(ii), the applicant and the sponsor would continue to meet the requirement that they are in a spousal relationship, except that the relationship has ceased and there is a child in respect of whom the applicant has custody, access, or a residence or contact order made under the Family Law Act 1975 (Cth) (FL Act). The sponsor must also have these rights, or a child maintenance obligation.

   CONSIDERATION OF EVIDENCE AND CLAIMS

   Background

9. The applicant is a 31-year-old man from Fiji. At the time of application, he claims to have been in a de facto relationship with his former sponsor, also aged 31 years.

10. According to material submitted in relation to the visa application, the former couple met on an online dating website in February 2016, first met in person in June 2016, registered their relationship in June 2017, commenced living together in February 2018, and welcomed a child in December 2018.

11. The applicant claims that his relationship with his former sponsor ended on 26 August 2020.

12. The applicant claims to have commenced a new relationship in April 2021 and to have married his new partner in April 2022. He has two children with his wife and is stepfather to his wife’s two children from a previous relationship. Birth certificates were provided for each child.

13. There is evidence before the Tribunal that the applicant’s wife was granted an Apprehended Domestic Violence Order against the applicant’s former sponsor.

14. There is also evidence before the Tribunal that on 30 May 2024, the Federal Circuit and Family Court of Australia made consent orders in relation to the child of the applicant and his former sponsor.

    Were applicant and the former sponsor in a de facto relationship at time of application?

15. ‘De facto partner' is defined in s 5CB of the Act, which 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 live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).

16. In forming an opinion about these matters, the Tribunal must have regard to all the circumstances of the relationship, including the financial and social aspects of the relationship, the nature of the applicant and sponsor’s household and their commitments to each other, as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

17. At the time of application, the former couple submitted very limited supporting documentation to substantiate their relationship. No independent evidence was submitted to the Tribunal regarding this matter, presumably because, according to the decision record, the delegate was satisfied that this criterion was met at time of application.

18. The Tribunal is not bound by the delegate’s decision. Rather, the Tribunal has a duty to make a decision by reference to his or her own assessment of the merits of the application.

19. I have carefully considered the applicant’s claims, the written statements and the documentary evidence provided. Having regard to these matters and the circumstances of the former relationship, I consider that it is reasonable to accept the applicant’s claims regarding the relationship at face value. I find that, at the time of application, the applicant and the former sponsor were in a de facto relationship, within the meaning of the Act, for the purposes of cl 820.211(2)(a) of Schedule 2 to the Regulations.

    Were the additional criteria for a de facto relationship met?

20. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. Both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the applicant and the former sponsor were at least 18 years old.

21. The applicant must also have been in the de facto relationship for at least the 12 month period ending immediately before the date of the application: reg 2.03A(3). This requirement will not apply in limited circumstances, including where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009).

22. The applicant has provided evidence that the relationship was registered under the Relationships Act 2008 (Vic) as a kind of relationship prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008: reg 2.03A(5). Accordingly, the 12 month requirement does not apply and reg 2.03A is satisfied.

    Was the applicant sponsored?

23. Clause 820.211(2)(c)(i) requires that, if the applicant’s spouse has turned 18, the applicant is sponsored by the spouse of the de facto partner. Reg 1.20 relevantly provides that the ‘sponsor’ of an applicant is a person who provides an undertaking to assist the applicant, to the extent necessary, financially and in relation to accommodation during the period of 2 years immediately following the grant of the temporary visa.

24. There is evidence before the Tribunal that the sponsor completed the department’s online sponsorship for a partner to migrate to Australia, which included the relevant undertaking, on or about 25 January 2019. Accordingly, cl 820.211(2)(c) of Schedule 2 to the Regulations is requirement is satisfied.

    Schedule 3 criteria

    Does the applicant meet the schedule 3 criteria?

25. The applicant did not hold a substantive visa at the time he applied for the visa that is the subject of this review. He also did not enter Australia as the holder of a Subclass 995 visa or special purpose visa.

26. Accordingly, the next issue to be determined is whether 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: cl 820.211(2)(d) of Schedule 2 of the Regulations.

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

28. In this case, the relevant day was the last day when the applicant held a substantive or criminal visa, being 21 March 2016 when the applicant’s visitor visa expired. The visa application was made 34 months later. Accordingly, the applicant does not meet the relevant Schedule 3 criteria.

    Are there compelling reasons for not applying the Schedule 3 criteria?

29. The expression ‘compelling reasons’ in cl 820.211(2)(d) is not defined in the Act or Regulations. However, according to jurisprudence, reasons that are compelling should ‘force or drive the decision-maker’ ‘irresistibly’ to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision- maker to find that the criteria should not be applied: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24].

30. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.

31. Ultimately, whether the circumstances are ‘compelling’ will be a matter of fact and degree for the Tribunal to determine. In doing so, the Tribunal is required to apply ‘his [or her] own mind to the issues raised’, engage with the materials for him or herself, evaluate them and to give them genuine consideration.

32. I have carefully considered the applicant’s claims and the evidence before me and am satisfied that there are compelling reasons for not applying the Schedule 3 criteria, namely that the applicant is the biological father of three Australian citizen children and the stepfather of two Australian citizen children, who are dependent on the applicant for their care and support.

    Does the applicant satisfy the time of decision criteria?

33. Where a spousal or de facto relationship has ceased and both the visa applicant and the former sponsor have ongoing legal rights or obligations in respect of a child, the visa applicant may be eligible for the Partner visa despite the relationship having ceased.

34. To meet the requirements for this exception, the applicant must:

    a.have custody, joint custody of, or access to; or

    b.have a residence or contact order made under the FL Act relating to:

    at least one child, in respect of whom the sponsoring partner has:

    c.been granted joint custody or access by a court, or

    d.a residence or contact order made under the FL Act, or

    e.a child maintenance order made under the FL Act or any formal maintenance obligation.

35. The terms ‘custody’, ‘access’, ‘residence order’ and ‘contact order’ are used in the Regulations with reference to the FL Act, however, they are no longer used in the FL Act itself. They have been replaced by ‘parenting orders’, which are orders dealing with any aspect of parental responsibility for a child and can be applied for by any person concerned with the care, welfare, and development of a child. Orders made under the FL Act using the new terminology can be accepted as meeting the requirements of this criterion.

36. I am satisfied that the court orders dated 30 May 2024 meet the requirement of this criterion. Accordingly, cl 820.221(3)(a) and b(ii) of Schedule 2 to the Regulations are satisfied.

37. 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

38. 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(2) of Schedule 2 to the Regulations

    ·cl 820.221(3)(a) and b(ii) of Schedule 2 to the Regulations

    ·reg 2.03A

    Tegen Downes
    Member

    
    

    ATTACHMENT - Extract from 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 in a de facto relationship with each other; and

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

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

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

    (i)       the duration of the relationship; and

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

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

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

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

    Schedule 3

    3001

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

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

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

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

    (c)if the applicant:

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

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

    whichever is the later of:

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

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

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

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

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

    3003

    If:

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

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

    (i)       an illegal entrant; or

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

    the Minister is satisfied that:

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

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

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

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

    (ii)      any subsequent bridging visa; and

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

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

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

    3004

    If the applicant:

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

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

    the Minister is satisfied that:

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

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

    (e)the applicant has complied substantially with:

    (i)       the conditions that apply or applied to:

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

    (B)any subsequent bridging visa; or

    (ii)      the conditions that apply or applied to:

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

    (B)any subsequent bridging visa; and

    (f)either:

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

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

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

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