Naureen (Migration) - [2024] ARTA 468

Naureen (Migration) [2024] ARTA 468 (3 December 2024)
Applicant:Mrs Gul Naureen
Respondent:  Minister for Home Affairs
Tribunal Number:  2412001
Tribunal:Moira Brophy
Place:Sydney
Date:  3 December 2024

Corrigendum
Date of corrigendum: 10 December 2024

Pursuant to s 114 of the Administrative Review Tribunal Act 2024 (Cth), the following
alterations are made to the Decision and Reasons for Decision:
The decision is altered to read below paragraph 38:
REPRESENTATIVE FOR THE APPLICANT: EDWARD VON-SHOOSTOV NALBANDIAN
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Gul Naureen
Respondent:  Minister for Home Affairs
Tribunal Number:  2412001

Tribunal:Moira Brophy
Place:Sydney
Date: 3 December 2024
Decision:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl 309.222 of Schedule 2 to the Regulations.

Statement made on 03 December 2024 at 9:58am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – reasonable to approve sponsorship – sponsor’s significant criminal record – elapse of time since last imprisonment – length of relationship and applicant’s age and knowledge of sponsor’s convictions – limited time spent together because of travel restrictions – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20KC(2), (3), (4), Schedule 2, cls 309.213, 309.222
STATEMENT OF REASONS

From 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
ISSUE
The issue in the present case is whether the sponsor has been convicted of a relevant offence or relevant offences and has a significant criminal record in relation to the relevant offence or relevant offences, and therefore reg 1.20KC(3) applies, and if so whether under reg 1.20KC(4), despite not meeting reg 1.20KC(3), it is reasonable to decide to approve the sponsorship.
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 May 2024 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) Subclass 309 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 2 February 2022. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 309.222 because the sponsorship referred to in cl.309.213 of the Regulations had not been approved by the Minister.
The applicant appeared before the Tribunal on 23 October 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review is set aside, and the matter should be remitted for reconsideration.
BACKGROUND
The applicant was born in Islamabad, Pakistan in 1983. She was previously married to Bashir Ahmed in the period from 1 August 2015 to 7 December 2017. Her parents, three sisters and one brother reside in Pakistan.
The sponsor was born in Fiji. He is a citizen of both Fiji and Australia. He was previously married to Ferial Nazli Khanin in the period from 1 January 1900 (sic) to 1 January 1999. There were two children of the marriage. His parents are deceased, he has one brother in USA and one brother and two sisters in Fiji.
At the time of application, the parties stated they met virtually in December 2020, having connected via an app for single Muslims. The parties committed to each other to the exclusion of all others on 24 July 2021 when an Islamic Nikah ceremony was conducted online. They met in person in Fiji in September 2022 when the applicant travelled to Fiji.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the sponsor has been convicted of a relevant offence or relevant offences and has a significant criminal record in relation to the relevant offence or relevant offences, and therefore reg 1.20KC(3) applies, and if so whether under reg 1.20KC(4), despite not meeting reg 1.20KC(3), it is reasonable to decide to approve the sponsorship.
The Tribunal has regard to the evidence in the Departmental and Tribunal files, including but not limited to, the decision record, the visa application, communication records and transcripts, identity documents, statutory declarations, and other written statements of the parties and third parties and written submissions of the sponsor’s representatives.
Are the sponsorship requirements met?
Clause 309.213 requires that the visa applicant is sponsored by the review applicant, where such person has turned 18; or where they have not, by the review applicant’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident, or eligible New Zealand citizen (as defined in reg 1.03 of the Regulations).
At the time of decision, this sponsorship must have been approved and still be in force. For visa applications made on or after 18 November 2016 the sponsor must also have consented for the Department to disclose to each sponsored applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl 309.222.
Approval of sponsorship is subject to limitations contained in 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 in relation to sponsors convicted of a relevant offence who have a significant criminal record where the visa application was made on or after 18 November 2016.
Regulation 1.20KC provides that the sponsorship of each applicant for a Partner or Prospective Marriage visa must be refused if the sponsor has been convicted of a ‘relevant offence’ and has a ‘significant criminal record’ in relation to it.
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).
Regulation 1.20KD provides that a ‘significant criminal record’ includes being sentenced to death, life imprisonment, imprisonment of 12 or more months, or two or more terms of imprisonment totalling 12 months or more, in relation to a relevant offence or offences.
The sponsorship may nevertheless be approved if it is reasonable to do so, having regard to matters including the length of time since the sponsor completed the sentence (or sentences) for the relevant offence or relevant offences; the best interests of any children of the sponsor or any children of the primary applicant; and the length of the relationship between the sponsor and the primary applicant: reg 1.20KC(4).
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 legislative provisions are 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 may 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 history, and thereby prevent a visa from being granted to potentially vulnerable people, particularly women and children.
Relevant offences
According to the evidence, including the Department’s Sponsorship Limitation Assessment in the Departmental file and the written submissions, the sponsor’s convictions as set out in the attached were considered to be ‘relevant offences as defined under reg 1.20KC(2). A copy of the Sponsor’s police record is attached to this decision.
At the time of hearing and in submissions made prior to hearing the sponsor did not dispute his criminal record. He accepted the police record provided to the Tribunal was a true and accurate record of his previous convictions. In submissions the sponsor outlined the circumstances surrounding each offence and the fact that each conviction had been after the involvement of a particular police officer who was subsequently removed from the police force due to corrupt behaviour. He requested this and the time lapse since his last conviction be taken into account when considering whether the sponsorship should be approved. The sponsor had the following medical conditions, bilateral foot pain, osteoarthritis of both knees, and peroneal tenosynovitis which he also requested be considered.
The Tribunal asked the sponsor whether during or after his time in custody he had undertaken rehabilitation programs, including counselling. He responded that he has attended counselling since his release, and he continues to do so. He said he had been damaged by his time in prison and he has to deal with that. It was his submission he did not commit the crimes in the first place so he contends it is not likely he will offend again.
The sponsor’s written statements, and his testimony at hearing confirm that he disclosed his criminal history to the applicant very early into their relationship. She has been shown a copy of his police record. This was confirmed by the applicant in her statutory declaration of 22 November 2023 and by her testimony at hearing.
In the statutory declaration of 1 December 2023, the sponsor states the most serious convictions against him date back 25 years. It has now been eight years since his last conviction. The Tribunal was mindful that the parties have been in a committed relationship now for four years and remain committed to each other and to pursuing the Partner visa application. This was corroborated by the sponsor’s and the applicant’s written statement and by his and her testimony at hearing.
The Tribunal member asked the sponsor various questions regarding his personal circumstances and progress since his release. The sponsor gave evidence of his involvement with his local Mosque and his attendance daily for prayers. He is living in social housing; it is an over 55s development. He is in receipt of a Centrelink payment, and he does some casual work when he is able. He has two children from his previous marriage who are now adult and living independently. He sees them on a regular basis.
The Tribunal was mindful of the nature of some of the offences the sponsor had been convicted for and that the purpose of reg 1.20KC is to prevent family violence and to ensure the safety of those applying to migrate to Australia under the Partner visa program and ensuring that those who do apply are aware of relevant offending by sponsors. The Tribunal discussed with the applicant her present circumstances. She is presently living in Fiji. She is supported financially by the sponsor. It was evident their shared religious beliefs were an important part of their relationship. The applicant wants to be in Australia with the sponsor. She would like to be able to start a family. With the sponsor’s support, she will learn English, and find work of some sort.
The Tribunal was especially concerned as to the sponsor’s lack of insight. The offences he had been convicted of involved violence against other persons. He had exhausted all his appeal rights and his convictions remained on his record. The sponsor saw the matter only in terms of the involvement of a certain police officer. Notwithstanding the concerns of the Tribunal especially given the nature of previous offences the sponsor had been convicted of, the Tribunal accepts that there is nothing in the evidence to suggest that the applicant is likely to be vulnerable or isolated should a visa be granted to her.
Is it reasonable to approve the sponsorship?
The Tribunal must consider whether it is reasonable to approve the sponsorship. As noted, reg 1.20KC(4) provides the factors the Tribunal must consider when considering whether it was reasonable to approve the sponsorship. These factors include the length of time since the sponsor completed the sentence; the best interests of any children of the sponsor or the visa applicant; and the length of the relationship between the sponsor and the visa applicant.
The Tribunal, when considering whether it was reasonable to approve the sponsorship, has considered the sponsor’s and the applicant’s oral and written submissions as well as the submissions made by the sponsor’s representative.
The length of time that has elapsed since the sponsor completed a custodial sentence for his most recent criminal convictions weighs in favour of approval of the sponsorship. The sponsor completed his most recent sentence some 8 years ago.
There is no evidence of any further adverse interactions with the law.
There are no children of the sponsor or the applicant to be considered.
The length of the relationship between the sponsor and the applicant also weighs in favour of approving the sponsorship. The applicant and sponsor have known one another for almost five years; they have been in a committed relationship for four years. The applicant continues to support the sponsor despite her knowledge of his convictions. The Tribunal accepts the parties have spent a limited time together physically since the commencement of their relationship and their marriage. The Tribunal has however taken into its consideration the impact of long international border closures due to the global pandemic and the inability of the sponsor to travel to Pakistan because of his criminal record, both of which have impacted on the parties’ ability to spend further time together.
The Tribunal accepts that the sponsor has been financially supporting the applicant since the early stages of their relationship. The Tribunal is satisfied that he disclosed his significant criminal record for the relevant offences to the applicant prior to their marriage. The Tribunal is also satisfied that the applicant is aware of the sponsor’s criminal record for relevant offences and maintains her wish to proceed with the visa application.
On the evidence before the Tribunal. the Tribunal does not consider the applicant presents as vulnerable. She presented as a mature woman aged 41 years. She has full knowledge of the sponsor’s criminal convictions. The Tribunal notes the applicant expressed a clear view that she believes there is no danger to her from the sponsor. The parties are committed to each other, and the applicant wishes to be with, and care for, the sponsor, in his later years in Australia.
Based upon the circumstances of this case and having taken all the evidence before it into account, the Tribunal finds that the sponsorship of the applicant should be approved and that the requirements of cl.309.222 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 309 visa.
DECISION
The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl 309.222 of Schedule 2 to the Regulations.
Date of hearing: 23 October 2024
Representative for the Applicant: Mr Robert Ivan Walker-Stambuk