SHAHIN (Migration) - [2021] AATA 2611

SHAHIN (Migration) [2021] AATA 2611 (4 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr MD AL KALAM SHAHIN
CASE NUMBER:  1804739
HOME AFFAIRS REFERENCE(S):          BCC2016/3282959
MEMBER:Meena Sripathy
DATE:4 June 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 criteria for a Subclass 820 (Partner) visa:
·cl 820.211 of Schedule 2 to the Regulations
·cl 820.221 of Schedule 2 to the Regulations

Statement made on 04 June 2021 at 10:41am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsor’s residence status – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – Schedule 3 criteria – compelling reasons for waiver – long-term relationship – substantial delay of the review process – health implications for the applicant – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 8250.221; Schedule 3, Criterion 3001
CASES
Babicci v MIMIA (2005) 141 FCR 285
He v MIBP [2017] FCAFC 206
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant applied for the visa on 30 September 2016 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). 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because the delegate was not satisfied the applicant and sponsor were in a spouse relationship within the meaning of that term in s5F of the Act. The delegate was also not satisfied the applicant met the Schedule 3 requirements or that there were compelling reasons for not applying those requirements in this case.
Before the Tribunal, Departmental records indicated that the sponsor as at 20 April 2021 was the holder of a Class TY Subclass 444 Special Category visa.
On 20 April 2021 the Tribunal wrote to the applicant to put him on notice of the issue that this information indicates the sponsor is not an Australian permanent resident as at this time, and the consequences of this for the review.
On 22 April 2021, the applicant provided evidence that the sponsor, having applied for a Resident Return (subclass 155) visa application on 21 April 2021, was granted that visa on 22 April 2021.
The applicant appeared before the Tribunal on 22 April 2021 and 6 May 2021 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 Bengali and English languages. The applicant was represented in relation to the review by his registered migration agent.
The issues in the present case is whether the applicant and sponsor are in a spouse relationship and whether the applicant meets the Schedule 3 requirements or there are compelling reasons for not applying those requirements in this case.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a 47 year old Bangladeshi national. He first arrived in Australia in July 2005, as the dependent on his then partner’s student visa. He was granted a further student visa in 2007 and a Skilled (Provisional- dependent) visa on 8 July 2009, which was valid to 8 January 2011. Following this, he made several other visa applications which were not successful. He lodged the present application on 30 September 2016, sponsored by Ms Norleen Hemaloto. Ms Hemaloto is a 46 year old New Zealand citizen. At the time of application she was an Australian permanent resident. She has parents, two sisters and one brother in Australia and a sister in New Zealand. The visa applicant has a mother, one brother and one sister in Bangladesh and one sister in Australia. The visa applicant was previously married to [Ms A] in 2004, and they divorced in October 2012. The applicant and sponsor claim to have met in January 2012 at the home of the sponsor’s uncle. They married on 7 July 2014.
Before the Department the applicant submitted various documents in support of the application. On 22 December 2016, in response to an invitation to address the Schedule 3 and/or compelling reasons issue arising in the application, the applicant’s representative made submissions that the parties were in a long term relationship and provided further evidence including statements of the relationship by the applicant and sponsor, photographs, marriage certificate, applicant’s bank statements and joint account bank statements, car insurance, QBE and NRMA insurance in joint names, evidence of money transfers made by the sponsor to Bangladesh, various correspondence addressed to the applicant and sponsor. A report from a psychologist, Cathy Egan dated 8 January 2015 relating to the applicant’s mental health and various other medical records were also provided.
The delegate refused the application on 8 February 2018, on the basis of not being satisfied that the applicant and sponsor were in a genuine spouse relationship and also that he did not meet criteria 3001 and there were no compelling reasons for not applying the Schedule 3 criteria.
Evidence before the Tribunal
Information before the Tribunal obtained from Department records indicated that the sponsor was the holder of a Class TY (Subclass 444) Special Category visa which is not a permanent visa.
The Tribunal wrote to the applicant on 20 April 2021 to inform him of this information obtained by the Tribunal, its relevance to the issues under consideration in the review and invite him to comment or respond. The Tribunal explained that if the information was relied on, the Tribunal would find that the applicant is not the spouse of a person who is an Australian citizen, permanent resident or an eligible New Zealand citizen at the time of its decision.
The applicant, through his representative, responded to the Tribunal’s invitation on 21 April 2021, submitting an application lodged by the sponsor for a Resident Return (subclass 155) visa on 21 April 2021.
That same date, the representative provided the Tribunal evidence of visa grant notification to the sponsor, advising that she was granted a Resident Return (subclass 155) visa on 22 April 2021.
Tribunal hearing 22 April 2021
At the hearing, the issue of the sponsor’s residence status was discussed at the outset and she confirmed that she was unaware her permanent visa was no longer in effect until the Tribunal’s correspondence alerting her to this. She lodged a new application for a Resident Return visa immediately, together with supporting documents, and the visa was granted that same date. The Tribunal noted the evidence submitted of the visa grant and expressed some surprise at the speed of the decision. However, on the evidence now before it, it accepts that this addresses this issue and the Tribunal will proceed to consider the remaining issue, whether the applicant and sponsor are in a spouse relationship.
The Tribunal took evidence from the applicant, sponsor, her uncle and his sister.
Evidence from applicant
The applicant gave evidence about his current and address, who he lives with and since when, and past address history. Since July 2020, the applicant has been living at an address in Guildford, with his wife, the sponsor, her sister, [Ms B], and sister’s daughter, [Ms C], and two of the sponsor’s nephews, [Mr D], who recently returned to New Zealand, and [Mr E], who arrived about 6-7 months ago. [Ms C] studies in New Zealand, but came to Australia and got stuck here due to COVID 19.
Prior to this address the applicant lived with the sponsor and [Ms B] at another address in Guildford from around mid-2019 to mid-2020. Prior to that they were at an address in Parramatta with another sister of the sponsor, [Ms F], her partner, the sponsor’s parents and [Ms B] and [Ms C]. They moved from this address when [Ms F] and her family, and the sponsor’s parents returned to New Zealand. They moved from the first Guildford address to the second one, for a bigger garden space. Prior to the Paramatta house, they lived at two other addresses together, also in Parramatta, with [Ms B] and [Ms C].
The applicant confirmed that since he has been with the sponsor they have always lived with other family members of hers. She was living with her sister [Ms B] from before they were married.
The applicant has a sister in Australia, [Ms G], living in Ashfield. She is married and has two adult children, studying at university but he is not sure what they study. His sister works at [workplace]. In Bangladesh he has his mother, and an older brother and sister, both are married and have 2 children. They live in Barisal City. The sponsor’s family comprises her parents, 4 sisters and 1 brother. She also has an uncle, [Mr H] who works at [a specified workplace] on security and he was the one who introduced them.
The applicant gave evidence about his migration history. He came to Australia with his ex wife in 2005. She was studying and he was a dependent on her visa. The last visa he held was valid to 8 January 2011 and he has not held a substantive visa since then. His previous marriage ended because his wife had an affair and there was a distance between them and it ended. After that there were many accusations against him in Bangladesh. Their problems with their marriage started from 2009 or 2010. They eventually separated at the end of 2011. He met the sponsor in January 2012 and by then was no longer involved with his ex wife.
He met the sponsor when he was invited to a party by [Mr H], her uncle. They exchanged numbers and went out a few times as friends. She helped him with his English. He started going to her place. Eventually he proposed marriage to her in early 2014, after new years’ eve. He never asked her about her past relationship history because in his culture one does not ask about such things. The applicant said, for example, he never asks his nieces if they have boyfriends. He told the sponsor that he separated from his wife and that he went through a harsh situation with her. The applicant said he cannot remember exactly what he told the sponsor because at that time he was going through a difficult time and had mental health issues. He said he only shared a little about that with the sponsor.
The Tribunal put to the applicant that the timeline of his migration history and inception of this relationship may lead it to have some concerns about whether he entered into this relationship solely for a migration purpose. In response the applicant said he had met the sponsor in 2012 and the relationship developed gradually since then. The Tribunal noted that in this period he was still pursuing his skilled visa application as a dependent of his ex wife and the Tribunal may find this to be inconsistent with his claims that he was commencing a new relationship. He said they were initially only friends and the relationship developed over time.
They married in July 2014 but did not lodge the application until 30 September 2016. The Tribunal asked why the delay in lodging the application. He said he did not understand the law and just followed advice of his lawyer.
The wedding was attended by 30-35 people. The sponsor, her sister, and their family and the sponsor’s uncle and his family. His mother in law came also from New Zealand a few weeks later, but she was initially not happy about it. The applicant told his parents about the relationship in January 2014 or so around the time he proposed to her. They were okay about it because they are quite open. His sister married a person outside the culture/religion and they were fine about it. His sister knows all about the relationship from the beginning.
The applicant gave evidence about his work arrangements and financial aspects of the relationship. He works at present at a cleaning business 32 hours a week, Monday to Friday and at a restaurant in Ingleburn 5-6 evenings a week since the past week. Before that he was doing delivery work. He earns $700-800/week and is paid into his St George account. When he was unable to work, he borrowed money from various people.
They have a joint Westpac account, but only he deposits money into this account. The sponsor spends money from the account but doesn’t deposit into it. She has been working at the same job at Tip Top Bread, on a full time basis, for a long time. He picks her up from work regularly but was unable to state the address. She goes to work early, around 5.30-5.45 am by bus. She catches two buses. Her pay is around $700/week.
The rent is about $300, the applicant contributes cash which he gives to the sponsor. She pays for groceries and bills. The bills are in the sponsor or [Ms B]’s names. Some have been in his name also but he is not sure. When he had no work, the sponsor supported him financially. The Tribunal noted earlier he said he borrowed money from others. In response he said she supported him.
He bought a car in 2015 for $15,000 in his sister’s name. He drives it and he pays the loan on this. Sometimes the sponsor pays the registration for this car. They haven’t bought anything together since their marriage.
The applicant is not aware if the sponsor has received income from Centrelink. He confirmed he has paid income tax and said he believes he declared her as a spouse last year. The Tribunal invited him to provide evidence of this. He is not aware if she has named him as a beneficiary on her superannuation. Regarding loans – he is aware she previously had a loan but is not sure if she has paid it off. He had a loan in the past with his ex-wife. The sponsor has sent money to his family in Bangladesh because she cares about them. He also has sent money a few times to her family members.
Regarding social activities, he said before COVID they would visit her uncle’s house every month. These days they mostly stay home and garden together. She reads books and plays games on her mobile phone. They have no specific routine with cooking and housework. Sometimes he cooks, mostly Indian spicy food. She doesn’t like much spicy food. She makes pasta, noodles, taro.
They had a holiday to Canberra once for 2-3 days and went to the Blue Mountains 5-6 years ago for a day trip. The sponsor has travelled to Brisbane on a work trip and she goes to New Zealand twice a year. Recently her father was ill and then he passed away, while she was in quarantine. She had to quarantine here for 2 weeks when she came back. He brought food to her but cannot recall the hotel she was at. Apart from New Zealand she went to Perth once, or it may have been Tasmania to see her brother or friend. He did not accompany her on this trip.
When asked how she supports him, he said she supported him when he was unable to work. She had a work injury in 2018 and he looked after her. She also suffers from depression and saw a psychologist about it. Regarding matters they argue about, he referred to both of them smoking. She likes Win Blue but he prefers rollies. Sometimes if he plays the poker machines she gets upset.
Regarding future plans, he said they have both worked in the food industry and plan to open a restaurant/take away one day. They previously wanted a baby together but now its too late because of her age.
The Tribunal noted that if satisfied regarding the genuineness of the relationship a further issue arising is whether he meets Schedule 3 criteria or there are compelling reasons not to apply that requirement and asked what circumstances he wants the Tribunal to consider. He said previously they wanted a child together, but no longer have that plan, but now she is fully dependent on him to help her with physical things. He also referred to a recent incident in his country where his first cousin was killed in Bangladesh. He was living [overseas] and returned for a visit and was killed. The applicant said he was involved in politics also and he is afraid for his security to return.
Evidence from sponsor
The Tribunal discussed with the sponsor the issue of her residence status and why and how she did not have a permanent visa until recently. She explained that she did not realise it until the Tribunal informed them. She has come and gone between Australia and New Zealand regularly.
The sponsor gave her address history and the family members they have resided with at the various addresses. Her account was substantially consistent with the evidence of the applicant.
She told the Tribunal she owns a property in Oakhurst, jointly with her aunty. They bought it in 2012 and have a mortgage on it. She moved from this address because her sister [Ms F] separated from her husband and asked her to move in with her. [Ms F] later returned to New Zealand and then returned again. The sponsor said that she does not contribute to the mortgage payments for Oakhurst property since she ceased living there.
On 5 May 2021, the applicant submitted the following evidence discussed at the first hearing: details of the sponsor’s overseas trips between 2016-2020; address history of the parties from 2014 to present; news article relating to the relative of the applicant killed in Bangladesh in April 2021; statements made by the sponsor and witnesses, [Mr H] and [Ms G]; loan documents relating to sponsor’s mortgage over Oakhurst property; receipts for legal fees paid by [Ms G]; Westpac joint account statements 2018-2021.
Tribunal hearing 6 May 2021 – Evidence from sponsor continued
At the resumed hearing the sponsor recounted her address history and who lived with her at the various addresses. She confirmed that she was living with her uncle and his family at the time she met the applicant and they were courting, and moved out from that address to live with her sister [Ms F] about a year before the applicant moved in with them. She said they moved from that address to another address on the same street, Albert St, before moving to Prince St to a bigger house when more members of the family joined them, including her parents. From this address they moved to Guildford, first at one address then the current one. The Tribunal noted that this history did not correspond to the list of addresses provided by the applicant on 4 May 2021, which referred to a period between the Albert St address and Prince St address back at the uncle’s place in Oakhurst. In response the sponsor said it was a while back now and she may have got the order mixed up. Later in her evidence she acknowledged that at some point there were issues in the joint household during the period the applicant had lost his work rights and was unemployed. Her sister was not happy with him and she asked him to go and stay at her uncle’s house where she had a room. She would visit him there and went back and forth between the two houses.
The sponsor confirmed her employment. She works at Tip Top Bakeries in Ermington for the past 13 years. She works from 6 am to 2 pm. She travels to work by bus leaving home around 5.30 am and returns home by bus, or a few times a week the applicant picks her up. The applicant worked as a cleaner at a building in Parramatta until last week. He lost his job after he took several days off to attend this matter. He now works evenings as a cook at a restaurant in Ingleburn.

The sponsor knows the applicant’s sister and her family, comprising of her husband and two grown up daughters. She has been at their house many times and sees them regularly. She knows the applicant also has a brother and sister in Bangladesh. She was aware that his sister has helped him and them out financially a lot over the years, including paying for much of the fees for immigration applications and migration agent fees. She also bought him a car, with a loan. He pays her back within his means. When asked why she is assisting him financially rather than the sponsor, she said she also helps with their daily living expenses.
They met through her uncle [Mr H] who knows the applicant from his work at [a specified workplace]. The sponsor said she was last in a relationship prior to coming to Australia in 2000 and has not had a serious relationship since being in Australia. She has no children. After meeting at the party at her uncle’s place, they went out a few times. His English was limited and they mostly talked about food. He invited her to his place in Ashfield where he lived with friends. She knew he was previously married and his ex wife left him for someone. He was quite unhappy about it and angry. But he did not really talk to her about it. Gradually over time the relationship developed and eventually he asked her to marry him.
The wedding was attended by her uncle and his family, the applicant’s sister and her family and some close friends. Her parents did not attend but her mother came to Australia a few days after the wedding. Initially her parents were a bit hesitant in their support for the relationship because he was from a different culture and religion. After meeting and getting to know him they were okay.
Regarding financial matters, they each have their own bank accounts and a joint account. Her pay goes into her CBA account and she transfers it to her ANZ account which she uses on a daily basis. She acknowledged that she rarely deposits into the joint account and does not use it. She knows the applicant has a St George account into which his pay goes. She has a card for his account, which she showed the Tribunal from her wallet. She uses it from time to time. He does not have a card for her account. Regarding her tax, she said she puts in a tax return regularly and believes that she declares him as her spouse. She has not received any Centrelink money since marriage. She has a superannuation account but has not named the applicant as her beneficiary. She may have named her brother and never changed it. She has her sister ([Ms F]) named as next of kin for work purposes. Again this is from a long time ago and she hasn’t changed it. They have not bought much together since marriage, other than a fridge a few years ago. His sister bought a car which he uses.
The Tribunal asked about holidays taken together. She said they have not had many holidays. They went to Canberra once, and about 5 years ago she went to Darwin for a few days. He did not come with her. She went to Brisbane for a week or so recently, but he didn’t come. She travels to New Zealand twice a year or so. He cannot travel overseas so he hasn’t come. They spend Christmas at her uncle or his sister’s place with family members. She has celebrated Eid with his sister’s family in the past.
Regarding support he provides her, he helps her with housework, picking her up and just lots of things. He shares everyday things with her. He shares his dreams about one day owning a restaurant. This has always been his dream, she is coming along with it, and he wants to include Islander food also.
The Tribunal asked if there are topics they argue or fight about. She said she gets frustrated by him saying he will do things ‘tomorrow’ and she gets angry with him about it. She doesn’t like it when he goes out with the boys and gambles on the poker machines.
The Tribunal asked if there are any matters she wants the Tribunal to consider as compelling reasons for allowing his application to continue onshore. She said they have been married for 7 years now and have been unable to plan for the future because of his visa uncertainty. She cannot see herself going to Bangladesh. She has close family ties here. In the beginning they wanted to have a family together, but now it is too late. She has some health issues which make it difficult. She told him she didn’t want to be a single parent so she wanted his visa status to be decided first.
The Tribunal asked the sponsor if she is active on Face Book and if so if she has declared her relationship status or posts pictures of her and her husband. She said she has a Face Book account which she uses to communicate with her family but does not use it often and has not posted pictures of her husband because he asked her not to as he did not want to be tagged from her account. She said that she does not post much of her personal life on Face Book and mostly posts about food. Upon request, the sponsor showed the Tribunal her Face Book on her mobile phone. The Tribunal noted that her profile records her as ‘single’ and ‘living in Parramatta and pointed out this appears to be inconsistent with her claims. It also noted that her posts suggest she communicates with her family and there were some relatively recent ones (April 2021). In response she said she has not updated her profile for a while.
Applicant’s response to Sponsor’s evidence
The applicant made the following response to the sponsor’s evidence. Regarding the period he lived in Oakhurst, he said it was a difficult time for him. He had no work permit, and no Medicare. Her sister and family did not like him spending the days sleeping. Her uncle helped him a lot in this period and he moved in with them. The sponsor came and went between both houses. It was a hard time. Regarding the Face Book profile and posts he said he doesn’t like social media and does not use it, preferring the phone to communicate with his family. He believes she loves him despite what is on her social media. Social media does not paint an accurate picture of her life. He is involved with all of her family members, her parents, her sisters, her uncle. He denied that he told her not to post pictures of him on her social media. He confirmed he has no Face Book account. He repeated that she is dependent on him and looks after him and he looks after her. Their family cultures are similar and they want to live together.
Evidence from [Ms G]
[Ms G] confirmed that the applicant is her younger brother. She met the sponsor in 2012 at the club in Ashfield, when the applicant introduced her as his friend. She was aware they were seeing each other in 2012 and 2013 and she was helping him with his English. In 2014 she heard they got engaged and was happy about it. She talked to her parents and siblings and her own family about it. They were all supportive. The Tribunal asked what the parents reaction was, given the different background and religion. [Ms G] said that they were fine with that, as she also had married outside the religion and culture. She said it was more difficult for her when she told her parents about her partner back in 1996. Her parents were very upset and it took some time for them to adjust. Her father has since passed away. Her mother is okay now about it. They are not a very religious family.
The Tribunal asked the witness about her observations of the applicant and sponsor and their relationship. She believes they are committed to one another and love one another. They have both had their struggles but have stayed together. When he didn’t have a job the sponsor supported him. The sponsor also had her struggles and the applicant has supported and helped her. She has observed their interactions and how the sponsor accepts things about him, like the fact that in their culture and language they don’t say please, but she doesn’t mind that and seems to understand what he means. The witness said they come to her house often, prior to the pandemic and restrictions, now less often. Most recently she had a meal with them and the sponsor’s uncle and his family in April. She has met extended family of the sponsor.
The Tribunal asked the witness about her financial support of the applicant and why she has done this. She said in her culture they have an obligation to support and help the family. The applicant repays her as he can. She has assisted with costs for his immigration applications and agent fees and also took out a loan to buy a car for him to use as a Uber driver. She pays the loan repayments but the applicant helps sometimes.
The witness said she is aware they have a plan in future to open a restaurant business. She wants to help them to achieve that and has contacts in the industry who can help them.
The Tribunal asked the witness if she has any concerns about the applicant returning to Bangladesh in future to lodge the application. She said that her brother was involved in the BNP and suffered an injury in 2012. His ex wife’s family are also involved in politics and so things are difficult for him there. The Tribunal asked if she has returned in recent years. She said she went back two or three times since her brother’s incident, but stays in Dhaka and only for short periods. She returned to see her parents when they have been ill. She did not take her husband or children on any of these trips because its too dangerous. Her brother’s daughters have had threats against them from Awami League. Recently a first cousin of theirs, who lived [overseas], returned for a visit and was attacked and killed. It was reported in the media. It was very upsetting. He has a wife and two children [overseas] and a baby on the way and was about to fly back. The applicant told her about this recently. We are close relatives.
Evidence from [Mr H]
[Mr H] stated that he knows the applicant from his work at [a specified workplace]. He has friends from many different backgrounds and met the applicant through these friends. He often invites his work friends to parties and gatherings at his house and he invited the applicant to his birthday celebration in 2012. The sponsor, his niece, was living with him at this time and they met at this event. He didn’t specifically invite the applicant to his house to meet his niece, he invited him as he does other friends. They just met and got along. Sometime after this event, his sponsor moved out to Parramatta with her sister. Afterwards, when they started seeing each other more often and were a couple his niece told him and they would come over to his house often. In around 2015, there was some tension with her family members, given the differences between them in religion and culture, and the applicant wasn’t working at that time. [Mr H] took him in and he stayed in his niece’s room in the house. She would come and stay often also but also stayed with her family. This was for about 2 years. After this they moved out, he is not sure exactly why.
The Tribunal asked for his opinion on their relationship based on his observations. He believes they are genuine as they are very close to each other. When she had a shoulder injury he was so helpful to her, doing most of the work around the house. Her family all support the relationship, but not when he wasn’t working.
The witness told the Tribunal he thought this would be so much easier, but it has proved not to be. He told his niece to go back to New Zealand and sponsor him there. Their relationship is true, they support each other and they are together most of the time. They always visit his place together. The applicant has a dream of opening a restaurant and he hopes he can achieve it one day.
The Tribunal asked the witness why his niece did not move back when the applicant came to live at his house. He said she had obligations to her own family also. She came often and stayed overnight. She always has a room at his house. She supported him throughout this period.
The representative made brief oral submissions at the conclusion of the hearing. She submitted that all the witness have provided credible and generally consistent evidence and no concerns appear to arise from their evidence. The parties have now been together for 7 years. They may not have and children or assets but they clearly provide each other companionship and emotional support. They have little money but have supported each other as much as they could. Their commitment is demonstrated by the sponsor supporting the applicant when he was without a job, she ensured he had a place to stay. They have been living together for 7 years , eating, sleeping, cooking together. Though they have had no holidays they are used to each other’s presence. When she had an injury he supported her. They have future plans together, even though they have no money they still dream and talk about it. They still accept each other event through they cannot have children together.
On 20 May 2021 the Tribunal received the following further evidence from the applicant:
·Submissions by the applicant’s representative, enclosing further evidence and submitting that the applicant and sponsor have provided detailed and credible evidence to support that they are in a genuine relationship since 2014, and making submissions that there are compelling reasons to waive the schedule 3 criteria in this case, namely the recent death of the applicant’s cousin in Bangladesh highlights the dangers facing him there and the circumstances of COVID 19 worldwide, and in Bangladesh specifically, mean the applicant faces a serious health risk if required to return to lodge a fresh application.
·ATO Returns for the applicant and sponsor for financial years 2015-2018, which do not show declaration of a spouse to the ATO.
·A news article “How to avoid the 8 most comment ta return mistakes”
·Joint statement by the applicant and sponsor regarding their tax returns, stating that they use the same tax agent and they told him of their marriage however he spends little time with them and just prepares the return for them to sign.
·Media reports of death of applicant’s relative in Bangladesh, [name]. One article refers to the death of a person by the name of [name], aged [age] [deleted]; another identifies deceased as [name], [age] [deleted])
·Screenshots of communications with [Ms I], claimed to be the wife of [the applicant’s relative], on 12 May 2021 following his death.
·Statement of sponsor clarifying her evidence given at the hearing, that she met the applicant for the first time in January 2012 at [Location 1]. It should have been that she met him in January 2012 at her home in Oakhurst. She met his sister for the first time at [Location 1]. She was jumbled up on the day.
Whether the parties are in a spouse or de facto relationship
Clauses 820.2112)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian permanent resident.
On the evidence before it, the Tribunal accepts the sponsor held a Subclass 155 visa granted on 18 March 2016, and therefore was an Australian permanent resident at time of application for the purposes of cl.820.211(2)(a)(i). She was granted a further Subclass 155 visa on 22 April 2021 and the Tribunal is satisfied that she continues to be an Australian permanent resident at time of decision.
‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment 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.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. On the evidence of the marriage certificate before it, the Tribunal accepts the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).
Are the other requirements for a spouse relationship met?
The Tribunal has considered all of the evidence provided to the Department and Tribunal, including and their oral testimony and the evidence of their witnesses, and makes the following findings addressing the matters referred to in r. 1.15A(3).
Financial aspects of the relationship
The evidence indicates that the applicant and sponsor maintain separate bank accounts, into which their wages are paid and which they use for daily expenses. They also have a joint bank account, but gave consistent evidence to the Tribunal that only the applicant deposits funds into this account and it is not used by either on a regular basis or for any particular purpose. Statements from all the above accounts have been provided to the Tribunal. In their oral evidence they gave substantially consistent evidence that the applicant contributes $200-$300 in cash towards payment of rent, and the sponsor makes their contributions to the utilities (most accounts for which are in the name on her sister, although they have in the past held some utility accounts in joint names) and pays for groceries. The Tribunal notes the sponsor’s evidence at hearing that she has a debit card of the applicant’s St George account and uses it from time to time to make purchases, though the applicant does not have a card for her account. Since commencement of their relationship they have acquired no joint assets nor undertaken any joint loans. The sponsor contributed with her cousin to the purchase of the Oakhurst property, and is named on the mortgage, prior to the marriage (in 2012). The applicant’s sister bought a car under a loan agreement, for him to use for employment as a driver, and he makes payments on the loan. The parties gave evidence that during periods when the applicant has been without work permission the sponsor has supported him. The evidence indicates that his sister has also been a substantial source of financial support for him throughout his visa application process and generally. The parties submit that they have limited financial resources and pool resources within that context. They both also rely on family support, from the applicant’s sister and the sponsor’s family members with whom they have lived.
The Tribunal has considered the evidence before it, and the context of the parties being of limited financial resources. It accepts in that context that they have not individually acquired any assets or liabilities since marriage, and the evidence supports that they share daily living and household expenses. It accepts that the sponsor’s acquisition of a property interest in the Oakhurst house predated the marriage. It also accepts that she has no knowledge of the nature of her legal interest in that property (ie. whether it is held as joint tenants or tenants in common) and as yet has made no will.
The applicants and sponsor demonstrated a reasonable familiarity with each other’s financial affairs consistent with a genuine relationship. They have been open and candid in providing statements of their respective accounts which broadly supports the evidence they gave of the financial arrangements between them. They both earn a modest income and the Tribunal accepts their financial circumstances are therefore constrained. In this context the limited accumulation of assets since their marriage is understandable. Overall, the Tribunal accepts that the financial aspects of the relationship is consistent with the existence of a genuine relationship.
Nature of the household

Since the beginning, the applicant and sponsor have lived with other family members of the sponsor, at various addresses. They gave generally consistent accounts of their address history, and the correspondence and documents before the Tribunal are substantially consistent with their accounts. It emerged from the evidence that the applicant moved out of the joint family home for a period between 2015 to 2017 and into the home of the sponsor’s uncle at Oakhurst where the sponsor has a room (this being the property she owns an interest in and lived in prior to the relationship). The sponsor’s uncle and the sponsor both gave evidence to the Tribunal that the sponsor regularly spent time with the applicant while he lived here and gave him financial support, and that the reason for the move was due to tensions with her other family members. The Tribunal is prepared to accept this explanation and finds that the correspondence and documentary evidence supports the applicant and sponsor’s claims of living together since January 2014 at the various addresses. There are no children of the relationship so there is no evidence of joint responsibility for care and support of children. The parties claim they share housework, and that the applicant has supported the sponsor by doing physical tasks she cannot do as a result of injury to her shoulder. The evidence of the witnesses supported these claims. The applicant and sponsor gave consistent evidence about each other’s work routine and employment history and daily routines.
The Tribunal accepts on the evidence that the nature of the household aspects of the relationship is consistent with a genuine relationship and that they have lived together for most of the period since they married in 2014, a period of more than 6 years.
Social aspects of the relationship
The Tribunal notes, despite being married since 2014, they have taken only one trip together to Canberra several years ago for 2 days. The sponsor regularly travels to New Zealand, though the Tribunal accepts the applicant has been unable to accompany her due to his visa status. She has also travelled to other states, including Perth and Brisbane to visit relatives and friends but the applicant did not go with her, apparently due to financial constraints and work commitments. The parties claim they are fully integrated into each other’s extended families and the evidence supports this. They have lived over an extended time with members of the sponsor’s family. The evidence of photos show attendance at joint family celebrations. They each demonstrated familiarity with each other’s families. The evidence of the applicant’s sister and the sponsor’s uncle supported that they are integrated with each other’s families and present as a couple. While the evidence of their joint social activities was limited, they have explained that this is due to their limited resources. The Tribunal notes the sponsor uses social media to communicate with family and friends and has made no mention on her account of her marriage to the applicant or their shared life together. The applicant has named the sponsor as a beneficiary on his superannuation account, but the sponsor has not reciprocated. She has her sister named as next of kin for work purposes. Although the parties claimed in their oral evidence that they declared each other as spouses for their tax returns, the evidence of tax returns provided after the hearing does not support this. The Tribunal notes their claim that they told their tax agent they had married and he appears not to have recorded it, however the Tribunal is not inclined to accept this explanation as responsibility for providing correct and accurate information lies with the taxpayer. Therefore, in the absence of evidence of tax returns showing that they declared each other as spouses to the ATO, the Tribunal does not accept that they have done so.
The Tribunal has concerns that some evidence relevant to social aspects of the relationship are not consistent with a genuine relationship. Specifically, the limited evidence of holidays together given the duration of the relationship, and lack of any mention, or evidence by way of posts, of the relationship in the sponsor’s Face Book profile and account and income tax declarations. On the other hand, there is evidence that they are integrated with each other’s families and represent as a couple in that context, the applicant’s sister and sponsor’s uncle gave persuasive evidence in support of the relationship and the applicant and sponsor themselves gave credible evidence that they undertake activities together.
Having regard to the evidence holistically and in the context of the applicant and sponsor’s limited financial resources, and mindful that Facebook and social media generally can be unreliable as an accurate picture of a person’s life, the Tribunal is prepared to give the applicant the benefit of its doubts on these matters and accepts some evidence of social aspects of the relationship has been provided that supports the existence of a genuine relationship.
Nature of persons' commitment to each other
It has now been almost 7 years since the parties married. They gave evidence that they draw companionship and support from each other and have demonstrated support of each other during difficult periods over the past years, including for the applicant, when he was unemployed and struggling mentally and for the sponsor, when she suffered an injury to her shoulder. The evidence of the witnesses attest to their commitment and support of each other. They claim that although they initially desired a family, given the passage of time and the sponsor’s age this is no longer possible but they remain committed to each other. They claim they have plans for the future to establish and operate a business together. The evidence suggests this is more of the applicant’s dream than the sponsor’s, though she indicated that she is warming to the idea.
The Tribunal has some concerns about the timing of the relationship in light of the applicant’s migration and visa history, and consequently his motivations. However it is mindful of judicial authority which make clear that this, of itself, is not a reason to conclude there is no mutual commitment to shared life as a married couple or the relationship is not genuine, because people enter into marriages with a variety of purposes and motives. The case law makes clear that it is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country.[1] What is relevant for the Tribunal’s assessment is whether the parties’ intentions or motives are consistent with having a mutual commitment to a shared life to the exclusion of all others. In this regard the Tribunal has considered the evidence of the continuation of the relationship since it commenced with their marriage in July 2014 to date. They have lived together since then at four addresses, their oral and documentary evidence supports that they live together as a couple, have integrated with each other’s extended families, and have discussed plans for the future together. There is no evidence or information before the Tribunal to suggest or indicate the presence of any other person in either the applicant or sponsor’s lives with whom they are in a partner relationship.
[1] Re MILGEA and Dhillon [1990] FCA 144, citing with approval Street CJ in R v Cahill (1978) 2 NSWLR 453 at 458, also referred to as still relevant in Garcevic v MIAC [2012] FMCA 931 at [34].
On balance, notwithstanding its initial concerns, the Tribunal is satisfied that even if the applicant and sponsor commenced the relationship motivated by a migration outcome for the applicant, they have since then, formed a mutual commitment to a shared life as a couple and a genuine and continuing relationship, in the sense of one that is enduring for a period into the reasonably foreseeable future.
On the basis of the findings and conclusions above, the Tribunal is satisfied the applicant and sponsor have a mutual commitment to shared life to the exclusion of others; the relationship is genuine and continuing ; and they live together and therefore the applicant meets the requirements of s5F(b)-(d) of the Act at the time the visa application was made and the time of this decision.
Having found above that the sponsor is and was an Australian permanent resident at time of application and time of decision, therefore the applicant meets cl 820.211(2)(a) and.820.221(1)(a).
Does the applicant meet Schedule 3 criteria, or should those criteria be waived?
An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy 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).
It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria. These criteria are set out in the attachment to this decision.
Criterion 3001
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.
In the present case, the last substantive visa the applicant held was a Skilled (Provisional-dependent) visa (Subclass 485) visa which was valid until 8 January 2011. The ‘relevant day’ therefore was 8 January 2011. He applied for the present visa on 30 September 2016.
As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.
Compelling reasons
As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is required to consider whether there are compelling reasons for not applying the criteria.
The expression ‘compelling reasons’ is not defined for these purposes. However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. 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.
Before the Department the compelling reasons put forward on behalf of the applicant were that the they had been in a de facto relationship since January 2014 and married since July 2014 which was already by that stage a long term relationship. It was also submitted that the applicant and sponsor suffered mental health issues and relied on each other for emotional, physical and financial support; that he feared harm in his home country due to his political opinions and threats from his ex wife’s family; and that they were both trying for a baby and due to the sponsor’s age this could not be further delayed. The delegate was not satisfied that any of these circumstances were sufficiently compelling to waive the requirements of Schedule 3.
Before the Tribunal the applicant submits that his relationship now has been ongoing for more than 7 years and is a genuine and long term relationship. He fears return to Bangladesh due to a recent incident where his first cousin was murdered for political reasons and he fears for his security if he were to return. While he and the sponsor are no longer planning for a child due to her age, she remains dependent on him for emotionally and physically due to an ongoing shoulder injury she suffers from. Finally, his representative refers to the circumstances of COVID 19 and the health implications for him were he to be required to return to Bangladesh now to lodge a fresh application.
The Tribunal has considered the applicant’s submissions and all of the circumstances now before it. Above, the Tribunal has accepted that the applicant and sponsor were, at time of application and continue now, to be in a genuine and continuing partner relationship. It accepts that they have been married since July 2014, almost 7 years, and it accepts that this constitutes a long term relationship. In the circumstances of this matter, and mindful especially of the substantial delay of the review process and the implications this has were it to refuse the application on this basis and require the applicant to re lodge an offshore application, the Tribunal finds this is a compelling reason.
The Tribunal also takes into consideration the impact and consequences of the current global COVID 19 pandemic and accepts that there may be significant health implications for the applicant if he were required to return to Bangladesh now or in the near future to lodge a fresh application, in addition to the uncertainties of the timing of future processing of offshore applications and restrictions on international travel which would impact the sponsor’s prospects of visiting him and timing of his return to Australia. In the circumstances, it accepts these are compelling reasons.
With regard to the claims regarding the death of a close relative in Bangladesh recently and its relevance to his situation, the Tribunal declines to make any determinative findings about whether or not it accepts this claim, on the limited evidence before it. It observes that the two news articles provided purporting to relate to the matter provide contradictory details as to the individual’s name and age, and the evidence of communications with his claimed widow was not accompanied by any evidence to verify or support her identity or the relationship between the applicant and the deceased or his widow. Even if the Tribunal were to accept that a close family member of the applicant was killed recently in Bangladesh, on the evidence before it the Tribunal is not satisfied he has established sufficient connection between his circumstances and this incident such that it would be a compelling reason to not apply the Schedule 3 criteria.
Despite this, having regard to all of the circumstances and giving particular weight to the duration of the relationship and impact of COVID 19 pandemic, the Tribunal is satisfied in this case there are compelling reasons for not applying the Schedule 3 criteria.
Accordingly, the applicant meets cl.820.211(2)(d)(ii).
The Tribunal is satisfied that the applicant is sponsored by the sponsoring partner and therefore meets cl.820.211(2)(c).
Therefore he meets all of the requirements of cl.820.211(2). He continues to meet the requirements at time of decision and therefore he meets cl. 820.221(1)(a).
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

100. 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 of Schedule 2 to the Regulations
·cl 820.221 of Schedule 2 to the Regulations.

Meena Sripathy
Member

ATTACHMENT - Extract from Migration Regulations 1994
1.15A Spouse
(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act 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 married to 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.