SEOL (Migration)

[2023] AATA 4410

SEOL (Migration) [2023] AATA 4410 (21 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms YOUNJOO SEOL

REPRESENTATIVE:  Mr YOUNGKI HONG (MARN: 0701746)

CASE NUMBER:  1836507

HOME AFFAIRS REFERENCE(S):          BCC2017/1600870

MEMBER:Deputy President Justin Owen

DATE:21 December 2023

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 criteria for a Subclass 820 (Partner) visa:

·cl 820.211(2)(c) of Schedule 2 to the Regulations; and

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

Statement made on 21 December 2023 at 10:12am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation – two previous sponsorships – compelling circumstances to waive requirements – previous failed relationships not themselves compelling circumstances – genuine and continuing relationship – closure of business and sponsor’s relocation to applicant’s home country if application unsuccessful a genuine and significant hardship – sponsor’s assistance to elderly mother with health concerns – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.03, 1.20J, Schedule 2, cl 820.211(2)(c), 820.221(4)

CASE
Babicci v MIMIA [2004] FCA 1645; [2005] FCAFC 77

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 on 27 November 2018 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 May 2017 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 delegate found the applicant’s application was subject to a sponsorship limitation under reg 1.20J(1) given the sponsor had already sponsored two previous partner visa applications.  The delegate was not satisfied that there were ‘compelling circumstances’ affecting the Australian citizen sponsor (reg 1.20J(2)) to waive the sponsorship requirements including the limitation on the approval of a further sponsorship.

4. The applicant appeared before the Tribunal on 12 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mr Adrian Li and the applicant’s mother-in-law Ms Jessica Li. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

5. The applicant was represented in relation to the review.

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 there are compelling circumstances for the waiver of the sponsorship limitation under reg 1.20J.

   Is the applicant sponsored?

8. Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include cl 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. Regulation 1.20KA 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 by 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.

11. Regulation 1.20J of the Regulations 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. Under reg 1.20J, a sponsor is limited to a total, in a lifetime, of two approved sponsorships or nominations that lead to a grant of a partner visa (or entry permit) or a visa (or entry permit) granted on the basis of the domestic violence provisions. If there has been one previous sponsorship or nomination, or if the sponsor was granted a visa or entry permit as a result of being sponsored, a period of five years must have passed since the date of the earlier visa application. These requirements apply unless the Minister, or the Tribunal on review, is satisfied there are compelling circumstances affecting the sponsor: reg 1.20J(2).

12. The expression ‘compelling circumstances’ is not defined in the legislation. The Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: Babicci v MIMIA [2004] FCA 1645 or are ‘so powerful that they lead the [Tribunal] to make a positive finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77.

13. It is not in dispute that the applicant has two previous Partner visa sponsorship applications.  The first was on 15 March 1999 where the sponsor sponsored Ms Seong Yeon Seo which resulted in the grant of a permanent visa.  The second was on 24 February 2011 when the sponsor sponsored Ms Hyunju Son which also resulted in the grant of a permanent visa.  The applicant subsequently does not meet reg 1.20J(1)(a).

14. Given the applicant does not satisfy reg 1.20J(1) the applicant and sponsor are required to establish, as per reg 1.20J(2), ‘compelling circumstances’ that affect the sponsor to satisfy the waiver provision. 

15. The Tribunal has taken into account the extensive oral and written submissions provided by the sponsor, the applicant, and the sponsor’s mother-in-law.  The Tribunal is satisfied, based upon the evidence before it, that compelling circumstances have been established that affect the sponsor which justify the exercise of the waiver provision.

16. The applicant and sponsor each discussed the sponsor’s two previous partner applications.  The applicant explained that the first relationship in 1999 was when the sponsor was very young and naïve.  The sponsor stated that the relationship first started around 1993 when he was only around 20 years of age and his partner was 18 years of age.  He stated they were both very young and naïve.  He stated the relationship fell apart ultimately due to his travel as a film producer which precipitated conflict between them.  He stated the relationship ended in around 2001. 

17. In relation to his second relationship, the sponsor stated that the relationship commenced in around 2010 and ended in 2012. 

18. The Tribunal noted the applicant and sponsor had previously submitted these failed relationships were compelling reasons that justified the exercise of the waiver.  The sponsor explained that he had been irresponsible upon reflection with those two relationships, and he greatly regretted the hardship and pain this had caused the applicant given the catastrophic impact upon her Partner visa application.   The Tribunal accepts the sponsor was particularly young at the time of sponsorship of his first Partner visa application.  The Tribunal does not however consider these two failed relationships themselves are compelling reasons in their own right to justify the use of the waiver provisions.  The Tribunal is not satisfied the sponsor’s two previous relationships, and the circumstances of those relationships, are compelling reasons to justify the waiver. 

19. The applicant and sponsor each submitted their own genuine relationship together is a compelling reason for the waiver to be exercised. 

20. The Tribunal questioned and discussed the spousal relationship between the parties in some detail.  The parties met in April 2014, almost a decade ago in South Korea.  The Tribunal accepts the evidence that the sponsor flew to be with the applicant multiple times before the parties committed to a relationship together in April 2015 and married in Sydney on 18 April 2017.  Whilst the Tribunal is addressing the sponsorship issue in its review, rather than an assessment of the s 5F criteria for the grant of the visa, the Tribunal would note that the evidence before it is suggestive that the parties have been, and remain in, a genuine and continuing spousal relationship. 

21. The applicant and sponsor discussed how their lives developed after the applicant moved to Australia in 2015.  The parties travelled around Australia and in May 2016 and they opened a café together on George Street in the Sydney CBD.  The parties discussed their operation of the café seven days a week for twelve hours a day, and the support they provided each other during this period.  The parents of both the applicant and sponsor helped support them during this period. 

22. The parties married in 2017 and finally sold the café in 2018 after it went through many challenges due to the construction of the light rail down George Street.  The applicant and sponsor leased a smaller home and eventually invested in a new business together which operates today at the large Homebush DFO shopping plaza called Dinosaur Cakes which the applicant and sponsor operate seven days a week. 

23. The applicant and sponsor discussed the visits of the applicant’s family to Australia and the sponsor’s close relationship with them.  The Tribunal is satisfied the sponsor enjoys a close and genuine relationship with the applicant’s family and has done so for some years.  The sponsor’s mother in her own oral testimony discussed her own family’s close bond with the applicant.  The Tribunal is satisfied the relationship of the applicant and sponsor is recognised and supported by both families. 

24. The Tribunal notes the evidence that has been submitted of the applicant and sponsor undertaking various treatments in order to undergo IVF, as part of their stated aim to have a family together. 

25. The Tribunal has taken into account the documentation before it that suggests the applicant and sponsor have shared a residential lease for many years.  They have a well-used joint bank account.  The parties have jointly purchased an off the plan property together in Woden, the Australian Capital Territory due to settle in 2024.  The applicant is listed as the beneficiary of the sponsor’s life insurance and superannuation.  The voluminous documentation concerning the parties’ bakery business in Homebush illustrates an operation where the sponsor runs much of the business and the applicant is in charge of design of the products, holding a range of patents for the dinosaur cake designs.  The Tribunal is satisfied that the applicant and sponsor are in a genuine relationship with each other and have been so since 2014.    

26. The Tribunal found the sponsor and the applicant to be genuine, honest, articulate and reliable witnesses at the hearing.  The Tribunal considered their testimony to be considered, spontaneous and reliable. 

27. The Tribunal accepts the submissions of the sponsor that should the applicant’s visa be refused on the basis of his sponsorship, then he will be compelled to travel to South Korea to remain with the applicant.  The Tribunal, noting the genuineness of the parties’ affection and support for each other, is satisfied the sponsor will depart Australia and shift his life to South Korea to remain with his wife. 

28. The Tribunal is satisfied the hardship that will be caused to the sponsor justifies the Tribunal exercising the waiver provisions.  The Tribunal is satisfied that compelling circumstances have been established.

29. The Tribunal notes that the sponsor is an Australian citizen who arrived in Australia in 1988.  His family is in Australia: his mother, who is elderly with her own health concerns, discussed the important role her son plays in assisting her well-being.  The Tribunal is satisfied that the hardship that will be caused to the sponsor by his relocation to South Korea is significant.  The Tribunal notes that obviously the sponsor does not have to depart Australia.  Given his love for his wife, it is obvious that he will be compelled to do so if her Partner visa application is not able to proceed due to his sponsorship limitation. 

30. The Tribunal considers the relocation of the sponsor after decades as an Australian citizen to South Korea in order to remain with his wife, in a relationship the Tribunal accepts is genuine and long-term, represents a significant hardship that justifies the Tribunal’s use of the waiver. Whilst he may be familiar with Korean culture and language, the sponsor’s family is in Australia.  He is a long-term Australian citizen.  Relocating his life, even if it is to be with his wife the applicant, obviously represents a genuine and significant hardship to the sponsor.     

31. The Tribunal furthermore considers the hardship that will be caused to the sponsor’s Australian citizen family members, especially his elderly mother and father, by his relocation to South Korea, to remain with his wife the applicant is a further matter that justifies the Tribunal’s use of the waiver.     

32. The Tribunal has also taken into account the significant business the sponsor has built in Australia, together with the applicant, at the DFO Homebush shopping centre with ‘Dinosaur Cakes’.  The sponsor has invested significantly both financially and emotionally into building this business with the applicant.  The challenges facing retail and small business in Australia are well-known.  The Tribunal would consider it highly problematic and unreasonable should the sponsor be essentially compelled to dispose of the business in order to remain with his wife.  The corrosive impact on the sponsor’s business interests represents a further compelling reason in the Tribunal’s opinion that justifies the exercise of the waiver provision. 

33. The sponsor has provided a wide range of supportive documents from various friends and families, including some prominent members of their local community such as Councillor Andrew Ferguson of the City of Canada Bay as to the genuineness of the sponsor and applicant’s relationship, their considerable efforts collectively growing a small business over many years, and the impact the inability to progress the applicant’s Partner visa application has had upon the sponsor.  The Tribunal found the submissions and the 888 statements to be original, considered, and an honest appraisal of the sponsor’s predicament.  The Tribunal has given them positive weight as evidence of compelling circumstances justifying the exercise of the waiver. 

34. Based upon the circumstances of this case, and having taken all the evidence before it into account, the Tribunal finds that the sponsor’s sponsorship of the applicant should be approved.  

35. For the purposes of cl 820.211(2)(c), there is no issue before the Tribunal as to the identity or age (over 18 years) of the sponsor.  Clause 820.211(2)(c) is met. 

36. On the evidence before the Tribunal, the requirements of cl 820.211(2)(c) and cl 820.221(4) are met.

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)(c) of Schedule 2 to the Regulations; and

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

    Justin Owen
    Deputy President