Santos Castro (Migration)

[2024] AATA 132

Santos Castro (Migration) [2024] AATA 132 (24 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alexandre Santos Castro

REPRESENTATIVE:  Mrs Anne Frances O'Donoghue

CASE NUMBER:  2108512

HOME AFFAIRS REFERENCE(S):          BCC2019/335689

MEMBER:Cheryl Cartwright

DATE:24 January 2024

PLACE OF DECISION:  Melbourne

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

·cl 820.221(4) of Schedule 2 to the Regulations

Statement made on 24 January 2024 at 11:27am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limit – two previous sponsorships – compelling circumstances to waive requirements – sponsor’s mental health and applicant’s emotional support – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), rr 1.20J(1)(a), (2), 1.20KA, Schedule 2, cls 820.211, 820.221(4)

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 4 February 2019 on the basis of 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 visa applicant did not satisfy cl 820.221(4) because the sponsor of the application had provided two previous sponsorships for partner visas. Both sponsorships had resulted in visas being granted to the applicants.

4. On 30 June 2021 the Tribunal received an application for review of the decision. Pursuant to s 360(2)(a) of the Act and based on the material before it, the Tribunal considered that it should decide the review in the applicant’s favour. The Tribunal cancelled the hearing that was scheduled for 7 February 2024.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the sponsor of the application for a partner visa (subclass 820) has previously sponsored more than one partner visa application. Departmental records show that the sponsor had two previous sponsorships, on 3 August 2004 for a spousal relationship and on 30 April 2012 for a de facto relationship. Reg 1.20J(1)(a) requires that:

   not more than 1 other person has been granted a relevant permission as:
   (i) the spouse, de facto partner or prospective spouse of the sponsor on the basis of a sponsorship or nomination; or
   (ii) a person who ceased a relationship of a kind mentioned in subparagraph (i) with the sponsor after the person, or another person mentioned in the prescribed criteria for the visa, had suffered family violence committed by the sponsor

   Therefore, as the sponsor had sponsored more than one previous application, the application under review was refused because reg 1.20J(1)(a) was not met.

7. The delegate considered whether there were compelling reasons to waive the requirements of reg 1.20J(1)(a) in accordance with reg 1.20J(2) and found that there were not compelling circumstances that would affect the sponsor if the application was refused. Reg 1.20J(2) states:

   Despite subregulation (1), the Minister may approve the sponsorship of an applicant for a visa if the Minister is satisfied that there are compelling circumstances affecting the sponsor.

   Background

8. The parties met in Brazil in 2016 and began living together as a de facto couple a month later. They were married in Brazil on 21 January 2017. After the applicant’s employment ceased the parties moved into the applicant’s parents’ home in February 2017 and, later, moved together to the United Kingdom in August 2017. After living in the UK for 18 months, the parties relocated to Australia in January 2019.

9. After the application for a partner visa (subclass 820) was refused the parties continued to live together in Sydney in an apartment owned by the sponsor.

   Is the applicant sponsored?

10. Clause 820.211 requires that, 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).

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

12. Approval of sponsorship is subject to limitations contained in reg 1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship, and in reg 1.20KA which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. There are further limits imposed by reg 1.20KB in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010, and reg 1.20KC for sponsors convicted of a relevant offence who have a significant criminal record in relation to the relevant offence where the visa application was made on or after 18 November 2016.

13. At the time of application, the applicant was sponsored by a sponsor who was over 18 years of age and who is an Australian citizen. A copy of the sponsor’s passport is on file.

14. Reg 1.20J(1)(a) requires that no more than one previous sponsorship be lodged. Therefore, at most, a person may enter into no more than two approved spouse, de facto partner, interdependent partner or prospective spouse sponsorships. Departmental files show that the sponsor had two previous sponsorships, on 3 August 2004 which resulted in the grant of a partner visa on 28 November 2005 and on 30 April 2012 which resulted in the grant of a partner visa on 22 July 2014. Therefore reg 1.20J(1)(a) is not met.

15. Having found that reg 1.20J(1)(a) is not met, in accordance with reg 1.20(J)(2), the Tribunal is required to consider whether there are compelling circumstances affecting the sponsor if the application is refused. While the relationship between the parties might be genuine, this is not of itself a reason to waive the sponsorship limitation in reg 1.20J(1)(a).

16. The parties provided to the Tribunal a statement dated 30 November 2011 by Dr Nikola Westwell, Clinical Psychologist at Bondi Psychology, Bondi Junction. Dr Westwell states that the sponsor had presented to her with symptoms of anxiety, escalating to panic, and also with some symptoms of depression. Dr Westwell states that the sponsor stated that the trigger for these issues was the question about the applicant’s visa application and possible disruption of the marriage and resulting financial pressures. The symptoms had been exacerbated by the sponsor’s experience of emotional abuse in a previous relationship. Also, the sponsor had undertaken counselling after the death of her father. 

17. Dr Westwell also states that the sponsor relies heavily on the applicant for psychological and emotional support and this had helped her to overcome the anxiety suffered from the negative experiences in a previous relationship and had also helped her through the experience of the death of her father. Dr Westwell recommended that the applicant remain in Australia in order to support the sponsor.

18. The parties provided to the Tribunal a statement dated 13 October 2022 by Anne Lucas, Consultant Psychologist from Sydney. Dr Lucas states that she undertook a psychological assessment of both parties and is of the view that the sponsor’s mental health would decline if the sponsor was forced to choose between staying in Australia with her family or returning to Brazil with the applicant. While living in Australia the parties could earn sufficient funds to visit the applicant’s family in Brazil, but if they lived in Brazil they would not be able to afford to visit the sponsor’s family in Australia. Dr Lucas also states that the sponsor has received ‘significant emotional support’ from the applicant in helping her to deal with the death of her father and with problems of bullying at her place of employment. The Tribunal notes that no evidence of bullying at work has been provided.

19. The Tribunal places great weight on the statement by Dr Westwell and some weight on the statement by Dr Lucas. The Tribunal considers that, on balance, refusal of the applicant’s partner visa application would cause distress to the sponsor as the sponsor would face the prospect of a decision between following the applicant to Brazil and not seeing her family in Australia or remaining in Australia without a partner who has provided substantial emotional support.

20. The Tribunal notes that the sponsor, in this case, remains the sponsor of the applicant.

21. On the evidence before the Tribunal the requirements of cl 820.221(4) are met.

22. 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

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

    ·cl 820.221(4) of Schedule 2 to the Regulations

    Cheryl Cartwright
    Member