Ram (Migration)

[2021] AATA 3582

Ram (Migration) [2021] AATA 3582 (1 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Aswin Lata Ram

CASE NUMBER:  1827719

HOME AFFAIRS REFERENCE(S):          BCC2015/348788

MEMBER:Antoinette Younes

DATE:1 September 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criterion for a Subclass 820 (Partner) visa:

·Regulation 1.20J for the purpose of cl 820.221(4) of Schedule 2 to the Regulations.

Statement made on 1 September 2021 at 1:38 PM

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – limitations on approval of sponsorships – sponsor was the sponsor of two successful Partner visa applications – depression and PTSD symptoms – compelling circumstances affecting the sponsor – long-standing partner relationship– limitations of reg 1.20J be waived – compelling reasons exist –decision under review remitted

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.20, Schedule 2, cls 820.211, 820.221

CASES

Babicci v MIMIA (2005) 141 FCR 285
Nagaki v MIBP [2016] FCCA 1070

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 2 February 2015 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.221(4) because the requirements of reg 1.20J of the Regulations were not met.  Regulation 1.20J 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.

4. The applicant appeared before the Tribunal on 30 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr A Singh, the applicant’s sponsoring partner.   

5. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the requirements of reg 1.20J for the purpose of cl 820.221(4).   

8. Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include 820.211(2)(c) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in reg 1.03 of the Regulations).

9. At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved.  For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl 820.221.

10. 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 of the Regulations which sets a limit on the period before which certain visa holders can sponsor another person for a Partner visa. There are further limits imposed by reg 1.20KB of the Regulations 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 of the Regulations for sponsors convicted of a relevant offence, who have a significant criminal record in relation to the relevant offence, where the visa application was made on or after 18 November 2016.

11. In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal.  The information indicates that the applicant’s sponsor was the sponsor of two successful Partner visa applications. Therefore, the limitations of reg 1.20J apply.  The applicant did not dispute this information but is seeking a waiver based on compelling grounds.

12. Regulation 1.20J is concerned with serial sponsorship and abuse of the partner migration provisions, but it allows sponsorship approval in circumstances where a sponsor has successfully sponsored more than one partner, only 'if the Minister is satisfied that there are compelling circumstances affecting the sponsor'.[1] In this provision the compelling circumstances must specifically affect the sponsor.

    [1] Regulation 1.20J(2).

13. The meaning of ‘compelling circumstances’ in the context of reg 1.20J was considered by the Full Federal Court in Babicci v MIMIA.[2] The Court held that ‘on any view of the meaning of [compelling], the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the [provision] should be waived’.[3] In Nagaki v MIBP, the Court identified particular circumstances which of themselves could not constitute compelling circumstances in the context of reg 1.20J:

    ·     The genuineness of the relationship between the applicant and sponsor could not, in and of itself, constitute a compelling circumstance affecting a sponsor. The Court commented that, were it otherwise, every applicant who demonstrated that they were a spouse for the purposes of cl 820.211(2)(a) would fall within the exception in reg 1.20J(2).[4]

    ·     An applicant’s entitlement to fast-track the process of obtaining a Partner (Residence) visa on the basis of being in a partner relationship for three years or longer within the definition of ‘long-term partner relationship’ in reg 1.03, cannot amount to a compelling circumstance affecting the sponsor for reg 1.20J(2). The definition of long-term partner relationship in reg 1.03 has no statutory relevance or application for the purposes of reg 1.20J(2).[5]

    [2] Babicci v MIMIA (2005) 141 FCR 285.

    [3] Babicci v MIMIA (2005) 141 FCR 285 at [24]. The Court found no error in the approach taken by the Tribunal in considering whether each of the circumstances, alone or together, ‘compelled’ the exercise of the discretion or that it was ’forced or driven to waive the prohibition’. Contrast Babicci v MIMIA [2004] FCA 1645 at [16]–[17].

    [4] Nagaki v MIBP [2016] FCCA 1070 at [58].

    [5] Nagaki v MIBP [2016] FCCA 1070 at [69].

14. However, this is not to say that the existence of a genuine long-term relationship could not form part of the circumstances which the decision-maker may find amount to compelling circumstances affecting the sponsor. Departmental policy provides the following examples of compelling circumstances affecting the interests of the sponsor:

    ·the previous partner has died;

    ·the previous partner has abandoned the sponsor, and there are children dependent on the sponsor requiring care and support;

    ·the new relationship is long-standing; or

    ·there are dependent children of the new relationship.[6]

    [6] Policy - Migration Regulations - Div 1.4B - Limitation on certain sponsorships under Division 1.4 – Sponsorship Limitations – Spouse, Partner, Prospective Marriage and Interdependency Visas - Assessing Reg. 1.20J at [7.2] (re-issue date: 18/11/2016). The examples mirror those provided in the Explanatory Statement to SR 1996 No 211.

15. The policy also identifies the following as relevant as relevant when considering waiving the bar on repeat sponsorship:

    ·the nature of the hardship/detriment that would be suffered (by the sponsor) if the sponsorship were not approved; and

    ·the extent and importance of the ties the sponsor has to Australia, and the consequent hardship/detriment that would be suffered if the sponsorship were not approved and the sponsor were to feel compelled to leave Australia to maintain their relationship with the applicant.[7]

    [7] Policy - Migration Regulations - Div 1.4B - Limitation on certain sponsorships under Division 1.4 – Sponsorship Limitations – Spouse, Partner, Prospective Marriage and Interdependency Visas - Assessing Reg. 1.20J at [7.2] (re-issue date: 18/11/2016).

16. Those examples are not exhaustive, and the Tribunal needs to consider the individual circumstances of each case. The couple was introduced to each other through the applicant’s  sister-in-law on 27 July 2014 through a matrimonial site. They claim that they started communicating and on 12 September 2014, the sponsor booked his ticket to Brisbane to meet the applicant and her family.  On 3 October 2014, the applicant visited the sponsor in Sydney and she met his family.  The couple exchanged their vows on 5 October 2014 and they had their cultural wedding ceremony on 22 November 2014 when they started living together as  husband and wife.

17. The applicant provided to the Tribunal supporting documents including Forms 888, letters of support, joint bank statements, Child Support Assessment relating to the sponsor’s 15 year old son, Safe Debt Management Agreement relating to the sponsor, ASIC Registration of Business Name, photographs, and a Psychologist Report concerning the sponsor, dated 27 August 2021 from Ms M Gadea, Psychologist. 

18. Ms Gadea made the following observations:

    ·The sponsor was referred for psychological counselling and assessment by his treating doctor, Dr Das on the 3  August 2021 for ‘severe stress’. Dr Das completed a clinical assessment of the sponsor utilising the Kessler Psychological Distress Scale 10.  The sponsor scored 38/50 which puts him within the ‘extremely severe range for symptoms of Depression, Anxiety and Stress’. He has been provided with 10 psychological counselling sessions under a Mental Health plan to aid with his current psychological distress.  He attended an initial consultation on the 23 August 2021 via telehealth due to COVID-19 lockdown restrictions.

    ·On assessment, his score indicates that he is suffering from ‘Severe Depression enough to warrant to the use of an antidepressant medication and referral to see a treating Psychiatrist’. The test results on the Depression Anxiety and Stress Scale-21 also indicate that he is experiencing ‘extremely severe depression, anxiety and stress this level of symptomology is significantly impacting on his ability to psychologically cope with everyday living’.   

    ·He reported significant childhood trauma so he was assessed  using the Post Traumatic Stress Checklist and his score of 73 warrants the diagnosis of Post-Traumatic Stress Disorder (PTSD).  Due to the childhood trauma, he has developed a dependency on alcohol to ‘aid with his flashbacks and intrusive memories to these traumatic events’.  He reported that last year he experienced a further decline in his mental state, and he tried to commit suicide by cutting his wrists. He reported that the pressure of his wife’s visa application being declined had been constantly on his mind. He was scheduled and admitted into Campbelltown hospital.

    ·The sponsor reported that he had been working in freight operations and he was bullied by his employer to resign from his position after he told them he was suffering from depression and he could not cope with the excessive workload.  He reported that he has had an extensive work history and he worked as a nurse for 10 years in drug and alcohol rehabilitation.  He has one child to his first wife and there has been some ‘complex familial estrangement’.

    ·He has been living in a married relationship with the applicant for seven years who is employed in aged care as a kitchen hand. He has recently obtained casual part time employment at Fed Ex.

    ·Considering his current mental state, it is unlikely he will be able to work full time for some time due to the ‘severity of his Depression and PTSD symptoms’. He will require ongoing psychological counselling, medication treatment and psychiatric review.

    ·He has reported that his wife has been supportive of his mental health recovery and would be considered his primary support person.  He will require the ‘personal support and assistance of his wife to cope with everyday living tasks’.

19. The applicant provided a letter dated 24 June 2019 by Dr S Karia and clinical reports referring to the couple’s attempts to get pregnant in the last five years.

20. In submissions dated 21 August 2021, the representative argued that there are compelling circumstances in this case such as significant personal, financial, emotional, and physical adverse consequences.

21. In the course of the hearing, the applicant outlined how the couple met.  She confirmed that they have been together as a married couple since their marriage in late 2014.  Both the applicant and the sponsor expressed their mutual love and support.  The Tribunal asked about the sponsor’s 15-year-old son and the sponsor explained that prior to COVID-19 restrictions, he saw his son weekends and paid child support.  He also commented on the good relationship that the son has with the applicant.

22. The Tribunal accepts the evidence that the applicant and the sponsor have been in a spousal relationship for about seven years, which is a long-standing relationship.  The Tribunal accepts that the couple has been trying to have children, but they have faced challenges and they are not in a financial position to pursue IVF.  The evidence before the Tribunal which the Tribunal accepts is that the couple provides mutual emotional, personal physical, and financial support.  The sponsor has severe depression, PTSD and alcohol misuse issues – as evidenced by Ms Gadea’s report discussed above, and the applicant provides support, including emotional and financial.  Both the applicant and the sponsor discussed the impact of having to depart Australia to live in Fiji in case of the visa refusal.  Of significance is the fact that the sponsor has a 15 year old child and the Tribunal must consider his best interest.  It is difficult to see how refusing the visa is in the child’s best interest.  Although not living with the sponsor, the child has access to his father and has a good relationship with the applicant.  Refusing the applicant’s visa would potentially mean significant hardship to the sponsor as well as his son, who would be deprived of having regular contact with his father in Australia.  If the visa is refused, the couple essentially has two choices, separate or leave Australia.  Either option would result in hardship.  On the evidence, the Tribunal is satisfied that it is in the best interest of the child for the visa not to be refused.

23. In consideration of the evidence as a whole, the Tribunal is satisfied that there are compelling circumstances affecting the sponsor such that the sponsorship limitations in reg 1.20J should not apply.

24. At time of application, the applicant must satisfy cl 820.211 by meeting the requirements of at least one of subclauses (1), (2), (2A), (2B), (5), (6), (7), (8), or (9). The delegate considered subclauses (1), (2A), (2B), (5), (6), (7), (8) and (9) of cl 820.211 and found that the applicant’s circumstances did not fall within those provisions.  Consequently, the delegate found that the applicant did not satisfy any of them.  The delegate assessed the application under subclause (2) of cl 820.211. At the time of application, the delegate accepted the evidence that the applicant and the sponsor were in a spouse relationship as defined by s 5F of the Act, that the sponsor was an Australian citizen who was over 18 years old, and that he provided a sponsorship form for the visa application. The delegate was therefore satisfied that the applicant met cl 820.211(2)(c) at the time of application.  For the same reasons, the Tribunal finds that at the time of application, the applicant met cl 820.211(2)(c).

25. At the time of decision, the applicant must continue to be sponsored by the sponsor and the sponsorship must have been approved by the Minister and still in force.  Clause 820.221(4) states that the sponsorship mentioned in cl 820.211(2)(c), (5)(f) or (6)(c) has been approved by the Minister and is still in force.  Regulation 1.20J places limitations on approval of sponsorships.  The limitations of reg 1.20J may be waived in certain circumstances.

26. In consideration of the evidence as a whole, the Tribunal is satisfied that there are compelling circumstances affecting the sponsor such that the sponsorship limitations in reg 1.20J should not apply.  The Tribunal is therefore satisfied that the applicant meets the requirements of reg 1.20J for the purpose of cl 820.221(4).

27. 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

28. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criterion for a Subclass 820 (Partner) visa:

    ·Regulation 1.20J for the purpose of cl 820.221(4) of Schedule 2 to the Regulations.

    Antoinette Younes
    Senior Member