SIMBAJON (Migration) - [2025] ARTA 285

SIMBAJON (MIGRATION) [2025] ARTA 285 (18 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Benedicto Jr Badidles Simbajon
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2201415

Tribunal:General Member Downes
Place:Brisbane
Date: 18 March 2025
Decision:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 18 March 2025 at 10:00am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship not approved – sponsorship limit – two previous sponsorships resulting in visas being granted – compelling circumstances justifying approval of sponsorship – genuineness and length of relationship not in and of itself compelling – sponsor’s age and physical and mental health – long-standing employment in Australia, and employment prospects and standard of living in applicant’s home country – time since and circumstances of previous sponsorships – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20J(1), (2), Schedule 2, cl 820.221(2)(c), (4)
CASES
Babicci v MIMIA (2005) 141 FCR 285
Nagaki v MIBP [2016] FCCA 1070
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under section 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 24 January 2020 based on 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 delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.221(4) of Schedule 2 to the Regulations because the sponsorship was not approved.
The applicant appeared before the Tribunal via Microsoft Teams on 17 March 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.
The applicant was represented in relation to the review. The representative filed submissions to the department dated 20 August 2021 (the First Submissions) and to the Tribunal dated 13 August 2024 (the Second Submissions).
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
ISSUE AND LAW
The issue in the present case is whether the sponsor’s sponsorship of the applicant should be approved for the purposes of cl 820.221(4) of Schedule 2 to the Regulations, having regard to reg 1.20J.
Clause 820.211(2)(c) relevantly requires that, at the time of application, an applicant is ‘sponsored’ by their spouse. Under cl 820.221(4), at the time of decision, that sponsorship must have been approved by the minister and still be in force.
The Regulations set out several circumstances in which a sponsorship must not be approved by the Minister. Relevantly, reg 1.20J(1) limits the approval of sponsorship of partners, so that a sponsor is only able to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: SIMBAJON (Migration) [2025] ARTA 285
Case: [2025] ARTA 285
Decision Date: 18 March 2025

CaseChat Overview and Summary

In the case of Simbajon, the applicant, a 41-year-old man from the Philippines, applied for a Partner (Temporary) (Class UK) visa based on his relationship with the sponsor, a 59-year-old Australian citizen by birth. The couple claimed to have met online in November 2018, first met in person on 21 December 2018, become engaged on 24 December 2018, and married in Mackay in June 2019. The applicant is the sponsor’s third wife and fourth significant relationship. The primary legal issue before the Tribunal was whether the sponsorship limitation should be waived in light of the compelling circumstances claimed by the representative.

The Tribunal considered whether compelling circumstances existed that would justify waiving the sponsorship limitation. The representative argued that the longstanding nature of the relationship, the difficulties the sponsor would face if he were to relocate to the Philippines, the sponsor’s ties to Australia, the purpose of the legislation, and the period between sponsorships were compelling reasons. However, the Tribunal found that the genuineness and length of the relationship, while significant, were not in and of themselves compelling. The Tribunal also considered the sponsor’s age, physical and mental health, long-standing employment in Australia, and employment prospects and standard of living in the applicant’s home country. Despite these factors, the Tribunal was not persuaded that the compelling circumstances threshold had been met.

The Tribunal concluded that the requirements of cl 820.221(4) were not met and affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa. The Tribunal found that the compelling circumstances claimed by the representative were not sufficient to justify waiving the sponsorship limitation. The decision to affirm the refusal of the visa was based on the fact that the sponsor had already sponsored two previous relationships that resulted in partner visas being granted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The department’s Procedural Manual, which is not binding on the Tribunal, relevantly provides in relation to the waiver provision:7.2 Compelling circumstances affecting the interests of the sponsorUnder policy, compelling circumstances affecting the interests of the sponsor include instances where:· the applicant and their sponsor have a dependent child who is dependent on each of them or· the death of the previous partner or· the previous spouse abandoning the sponsor and there are children dependent on the sponsor requiring care and support or· the new relationship is longstanding.These examples are not exhaustive. The purpose of the sponsorship limitation is to prevent abuse of the partner/fiancé migration provisions and this should be kept in mind when deciding whether to exercise the waiver.Every aspect of the sponsor's circumstances is relevant to the existence of compelling circumstances. Although no definitive list can be given, some general aspects that may be particularly important are:· the nature of the hardship/detriment that would be suffered (by the sponsor) if the sponsorship were not approved.· 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. CONSIDERATION OF EVIDENCE AND CLAIMSBackground The applicant is a 41-year-old man from the Philippines also known as ‘Karen’. The applicant applied for the visa based on his relationship with the sponsor, a 59-year-old Australian citizen by birth. The sponsor and the applicant claim to have met online on a Filipino dating website in November 2018. They claim to have first met in person on 21 December 2018, to have become engaged on 24 December 2018, and to have married in Mackay in June 2019. The applicant is the sponsor’s third wife and fourth significant relationship. The sponsor has four adult children from his first marriage.Has the sponsor sponsored other applications? The couple concede that the sponsor previously sponsored a de facto partner under an application filed on 30 January 2006 and his second wife under an application filed on 12 November 2012. Both applications were successful and resulted in the applicants being granted partner visas. I make findings accordingly. In these circumstances, the Tribunal must not approve the sponsorship of the applicant pursuant to reg 1.20J(1) because more than one other person has been granted a partner visa as the spouse or de facto partner of the sponsor.Should the sponsorship limitation be waived? The representative made submissions to the department and to the Tribunal claiming that there are compelling circumstances affecting the sponsor that justify the Tribunal approving the sponsorship. Broadly speaking, those circumstances relate to:a.the longstanding nature of the relationship between the applicant and the sponsor;b.the difficulties the sponsor would have if he were to relocate to the Philippines to maintain his relationship with the applicant, related to his work and his health;c.the sponsor’s ties to Australia;d.the purpose of the legislation; ande.the period between sponsorships.

Decision

Reasons for decision

For these reasons, the requirements of cl 820.221(4) are not met and the applicant does not satisfy the criteria for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Dates of hearing(s): 17 March 2025 Representative for the Applicant: Mr Jeffrey Peter Harvie (MARN: 0959797)

Ratio Decidendi

Legal Principle Established

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