TIMSAH (Migration)

[2023] AATA 886

TIMSAH (Migration) [2023] AATA 886 (27 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Moataz TIMSAH

REPRESENTATIVE:  Mr Abu Siddque

CASE NUMBER:  1832936

HOME AFFAIRS REFERENCE(S):          BCC2017/3939464

MEMBER:Christine Kannis

DATE:27 March 2023

PLACE OF DECISION:  Perth

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)(a) of Schedule 2 to the Regulations

·cl 820.221(1)(a) of Schedule 2 to the Regulations

·reg 2.03A

·cl 820.211(2)(d)

Statement made on 27 March 2023 at 12:02pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – parties have pooled their financial resources and shared day-to-day financial responsibilities during the relationship – parties have lived at the same residential addresses since the time of application – de facto relationship existed for at least the 12-month period ending immediately before the date of the application – compelling reasons for not applying the Schedule 3 criteria – decision under review remitted   

LEGISLATION
Migration Act 1958, ss, 5F, 65, 359, 375
Migration Regulations 1994, r 2.03, Schedule 2, cls 820.211, 820.221

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32

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 25 October 2017 on the basis of his relationship with his sponsor, Ms Luisa Maria Escalante Gonzalez. 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 visa was refused because the delegate was not satisfied that the applicant’s relationship with the sponsor met the definition of a de facto relationship under the Act and therefore he did not satisfy cl 820.211(2)(a). The delegate referred to the applicant submitting information regarding compelling reasons for not applying Schedule 3 criteria. The delegate did not consider whether the applicant met the Schedule 3 criteria because of the decision that he did not meet cl 820.211(2)(a).

4. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

5. The applicant appeared before the Tribunal by MS Teams Video on 28 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence by MS Teams Audio from the sponsor.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issues in the present case are whether the applicant is the de facto partner of the sponsor as defined in s 5CB of the Act, and if so, whether he meets Schedule 3 criteria.

9. Clauses 820.211(2)(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 de facto partner of the sponsor who is an Australian citizen.

10. Section 5CB of the Act provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2). In forming an opinion as to whether parties are in a de facto relationship, consideration must be given 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 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

11. The applicant is a 34-year-old Lebanese national. The sponsor is a 33-year-old Australian citizen. The parties met on 19 May 2016. The parties claim to have commenced cohabitation on 8 October 2016.

12. Prior to the scheduled hearing, the applicant provided documentation which included but was not limited to statutory declarations, bank statements and letters of support. The Tribunal had significantly more evidence before it than was available to the delegate.

    Financial aspects of the relationship

13. The Tribunal considered the evidence in relation to the financial aspects including joint ownership of assets, joint liabilities, any legal obligations owed to the other party, the extent of pooling of financial resources and any sharing of day-to-day household expenses.

14. In a statutory declaration dated 24 January 2018, the applicant said:

    Luisa and I maintain a joint bank account and most of the utility bills including rent and internet bill is paid from the joint account.
    Luisa contributes mostly to the joint bank account, as I am currently unemployed. I will start contributing once I get my work rights and can work.

    Grocery bills, medical bills and other expenses are paid out of our joint bank account

15. In a statutory declaration dated 24 January 2018, the sponsor provided similar evidence.

16. In a statutory declaration dated 20 August 2018, the applicant said:

    I recently started work as a truck driver after I received permission to work. As a result, I am now able to financially contribute to our expenses. I deposit my pay into our joint account which is used to pay for our rent, internet payments and other expenses.

17. In a statutory declaration dated 7 August 2018, the sponsor said:

    I continue to work as a Dental Hygienist and study part time at the University of Newcastle. Moataz since getting his permission to work started working as a truck driver. He now contributes to our expenses by depositing his pay into our joint account.
    We both continue to use our joint bank account for our weekly expenses, including buying groceries, rent payment, Internet payment, entertainment and other expenses.

18. A Commonwealth Bank letter dated 28 November 2017 confirming that the parties opened a joint account on 7 April 2017 was provided. Statements for the account for the period 30 August 2017 to 26 November 2017 and 1 July 2021 to 30 December 2022 were provided. For the latter period, the credit transactions consist mainly of transfers from an account in the applicant’s sole name and the sponsor’s salary payments. The debit transactions include transactions for payment for food, groceries, entertainment and transport.

19. Prior to the hearing, the applicant provided a written statement which said in relation to the financial aspects of the relationship:

    We share furniture that we bought together that we still pay for from Harvey Norman,

    we bought them when we moved to our current address Smail street ultimo which includes a new bed and a mattress, a new tv and a new dining table.

    …..

    Me and my partner have a joint account that we had for around seven years which she gets paid to, also I put my pay into which our rent gets paid, and I do the shopping also mostly from the shared account and sometimes from my partner’s credit card which she has in her name, and I have access to it, also we have a goal saver that we had together for around 4 years which we save our money in but we had to take out for a family emergency so my partner can give to her father hector Escalante.

    Yes, I and my partner share day-to-day household expenses, our shopping costs are mostly from our joint account. Also, we use the joint account to pay our rent and our bills if we go out, and we also use my partner’s credit card which is in her name for some shopping and bills but we both pay the credit card off together we do our shopping mostly from Coles Broadway hence we lived around that area for most of our relationship.

    Since the time of the application submission, we had the joint account utilized for household expenditure and usage between us, this has not changed throughout and to date, the same account is operational and is being used. Also, since then we have established an anomaly in our relationship and have continuously used everything in sharing, from moving to a new place, buying furniture together, and have put together a house that we call home.

20. There is no evidence before the Tribunal that, at the time of application or at the time of this decision, the applicant and the sponsor jointly owned any real estate or other major assets or that they have any joint liabilities and the Tribunal so finds.

21. The Tribunal is satisfied that the parties have pooled their financial resources and shared day-to-day financial responsibilities during the relationship. The Tribunal decided that this was an indicator of a genuine and continuing de facto relationship at the time of application and at the time of decision.

    Nature of the household

22. The Tribunal considered the evidence in relation to the nature of the household including any joint responsibility for care and support of children, the parties' living arrangements and any sharing of housework.

23. In a statutory declaration dated 8 January 2018, the applicant said he moved in with the sponsor and her cousin, Ms Karen Yahyaoui, at Gordon Crescent Stanmore NSW 2048. A letter dated 25 October 2017 from Ms Yahyaoui  was provided in which she stated that the sponsor commenced living with her on 10 September 2016 and the applicant commenced living with them both on 8 October 2016. She said when she moved out the parties took over the lease.

24. In a statutory declaration dated 20 August 2018, the applicant said:

    Luisa and I still live at Grafton Street with our housemates. We have all become a family here.
    I continue to help out Luisa as much as I can because I know she has a busy schedule while I’m working and studying at the same time do the cooking and cleaning during weekdays and we both clean the house together on the weekends

25. In a statutory declaration dated 7 August 2018, the sponsor provided similar evidence.

26. A letter dated 26 October 2017 from a Ray White property manager confirming that the parties had been residing together at Grafton Street Chippendale NSW  2008 (Grafton Street) since 16 May 2017 was provided. A BUPA letter dated 1 July 2017 addressed to the sponsor at Grafton Street was provided.

27. A Tenant Trust Ledger Report dated 17 November 2021 in the parties’ joint names for the period 14 January 2021 to 28 September 2021 in respect of a property at First Avenue, Five Dock NSW 2046 was provided.

28. A Lifestyle Property Tenant History dated 16 January 2023 in the parties’ joint names in respect of Smail Street, Ultimo NSW 2007 (Smail Street)  was provided. The document records the payment of rental 6 July 2022 to 12 January 2023.

29. Prior to the hearing the applicant provided a written statement which said in relation to the nature of the household:

    We lived with my nephew who was a student here for a year or so when he was studying here from overseas at UTS his name is Marwan abbas but after he left, we lived alone together since and we reside in Smail street ultimo.

    Yes, we do most of the housework together even though Luisa is a lot more hands-on with the work around the house, nevertheless, I always help around the house as well in fixings and movings and some cleaning now and then. But most of the work is shared between us.

30. Correspondence dated 18 November 2022 addressed to the applicant at Smail Street was provided.

31. The Tribunal accepts that the parties have lived at the same residential addresses since the time of application. The Tribunal finds that the evidence presented relating to the parties’ residential addresses and the nature of the household was an indicator of a genuine and continuing de facto relationship at the time of application and at the time of decision.

    Social aspects of the relationship

32. The Tribunal considered the evidence in relation to the social aspects of the relationship including whether the parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the persons plan and undertake joint social activities.

33. In a statutory declaration dated 24 January 2018, the applicant said:

    We spend time with my nephews Karim Mardini and Akram Mardini. We go to gym with them at Anytime Fitness. They love spending time with Luisa and we always have barbeques together.
    Luisa and I go for movies with my best friend, Mustafa Karbala. He also comes over to our place and has dinner with us.
    Luisa's best friend Maria Henao had her wedding at Birkenhead Point last year and I was invited. This was a fun day for us and our friends.
    I am also invited to Luisa's other friend Margerita Mann's wedding, which wil be held in October. I am looking forward to her wedding, as Luisa is a bridesmaid and we will all have a good time celebrating the marriage.
    Luisa and I visit her family every weekend. Luisa's mother and her sisters get along well with me and we always have a good time. We spent last Christmas Eve and Christmas day with Luisa's family and we opened gifts that we bought together for her family. I feel extremely blessed to have another family to spend the holidays with.
    Luisa and I then went to my aunt's place for a Christmas BBQ. My cousins love spending time with Luisa as she is good dancer and they enjoy dancing with her.
    We spent New Years Eve with Luisa's family and went to my Aunt's house for a New Years dinner.
    Luisa is very close to my family back in Lebanon and speaks to them through face time. She cares about my mother and speaks to her daily to ensure that she is doing well after her surgery.
    Luisa and I enjoy exploring new places and Luisa surpised me with a trip to Hunter Valley for my birthday in March. Recently we went to Royal National Park with our housemates, Katherine Gonzales and Catalina Grandos. Luisa's friend Diana Chhor also joined us.

34. In a statutory declaration dated 24 January 2018, the sponsor provided similar evidence.

35. In a statutory declaration dated 20 August 2018, the applicant said:

    Although we have many worries, Luisa and I try to maintain our social lives. I encourage her to meet up with friends and family as it helps her with her stress.
    We both attended Luisas best friend's wedding where Luisa was a bridesmaid. She looked beautiful and we all had a good time.
    We went to watch the world cup with our friends. The game between Columbia and Senegal was a lot of fun because Colombia won, and we all celebrated at the pub.

    We had a farewell dinner for our housemate who was leaving to go to China.

    I visited Luisa while she was in Orange NSW. I also brought her parents because I know it makes her happy to see them.

36. In a statutory declaration dated 7 August 2018, the sponsor provided similar evidence.

37. Prior to the hearing, the applicant provided a written statement which said in relation to the social aspects of the relationship:

    All our friends and family know we are together and engaged. and they all value the time they spend with us, also important to note that Luisa and I are always together and we always attend joint events, hence there was never a differentiation between our friend circles, we are both jointly together with common friends and they can all vouch for our relationship and love.

    We spend most of our weekends with family and friends, visiting Luisa’s parents, sister and niece, and nephew every weekend, I have been to their birthday (Victoria since she was 2 till 8, and Mathias since he was 4 and now he is 10). I have a really good relationship with the kids we also go visit my side of the family, my aunt who resides in Oatley and owns a restaurant there called Salwa’s garden, we also spend lots of our time with my nephews which came from Lebanon one year after me and are (31 years of age, and the other arrived 4years after me who is 28 years of age and they live in the city which is 5 minutes away from where we live).

    we went on a lot of holidays together we go out with them to clubs, restaurants, and bars and we also spend a lot of time at their place.

    we watch many movies at home and in the cinema, we regularly go to Broadway Hoyts Cinema, which is one of our favourite spots. we also spend some birthdays with her friends and some with mine

    Luisa met all my family members here, my aunty, cousins, their kids and my nephews, which all reside in Australia.

    Also, Luisa met my mum and sister who came to Australia around 3 years ago, and they reside in Lebanon, also she met my other 2 sisters through facetime, who also reside in Lebanon.
    we spend every Christmas eve since we met with Luisa’s family, and Christmas day with mine. our first trip was on my first birthday with her when she took me to hunter valley for a few days which we have been there after that a few times with my nephews and friends throughout the years.

    Also, Luisa had a placement in orange for university for a month where I had to go visit with her parents to stay with her for a few days, our first new year of 2016-2017 we spent at Marquee with some of her friends which I met for the first time, and I know all of them now and their partners.

    second New Year together in 2017-2018 we went to Byron Bay with my nephews and friends and in 2018-2019 we did new years at her sister's house in Moore bank where she resides, then in 2019-2020, we spent at a friend's house with my nephews and in 2021-2022 we went to the gold coast, also with my nephew and some friends, where we spent new year's but due to my current situation we couldn’t leave Australia, which we would like to do, so we can visit her family in Colombia and mine in Lebanon and travel around for a little bit.

38. A statutory declaration dated 19 October 2017, made by Mr Fadi Dalati, was provided. He said he had known the applicant for 14 months and the sponsor for 8.5 years. His reasons for his belief that the parties’ relationship is genuine and continuing included that he had seen their relationship blossom and had been at social events with them. He said the sponsor has introduced the applicant to her family and the parties discuss future marriage and having a family. The Tribunal gives this evidence some weight.

39. A statutory declaration dated 23 October 2017, made by Ms Maria Henao Caicedo, was provided. She said she had known the applicant for 15 months and the sponsor for 18 years. She said she socialises with the sponsor on a weekly basis. She said the applicant attended her wedding in May 2017 as the sponsor’s partner.  Her reasons for her belief that the parties’ relationship is genuine and continuing included that she has visited their apartment on many occasions, that they are present at social gatherings as romantic partners, that they have future plans to start a family and that the applicant has been a crucial support to the sponsor during the previous year when she suffered personal stressors. The Tribunal gives this evidence some weight.

40. A statutory declaration dated 24 October 2017, made by Mr Refad Bader, was provided. He said he and his wife catch up with the parties for social dinners and drinks. He said he had known the applicant for 6 years and the sponsor for 1.5 years. His reasons for his belief that the parties’ relationship is genuine and continuing included that they love spending time together and talk about what their future holds. He said they have made a loving home and he and his wife visit their home often. The Tribunal gives this evidence some weight.

1. A written statement dated 16 January 2023, made by Dr Fadi Dalati, was provided in which he said:

   As a personal and professional friend of Luisa Escalante since 2009, I am here to confirm that Mr Moataz Timsah and Luisa herself have been in a serious relationship for over 7 years. It has been a pleasure for me as a friend to watch as this relationship blossomed and progressed.
   I know that they are engaged and have been living together now for over 5 years and I was pleased to hear at the end of last year in 2022 that they are planning on having children together as well.

2. A written statement dated 17 January 2023, made by the sponsor’s sister, Ms Lina Escalante Gonzalez, was provided in which she said:

   I have known Moataz Timsah for over 7 years now, since my sister Luisa Escalante Gonzalez and him started a serious and loving relationship. We have adopted Moataz as part of our extended family, and we are delighted that their relationship is still going strong. We are looking forward to the wedding once all Moataz’s paperwork is finalised and for my sister to finally start a young family of her own. My family and I are grateful that my sister has found her soulmate in Moataz and we hope to continue seeing their relationship grow and blossom even more.

   Over the 7 years that I have known Moataz, I have known him to be a great person and a great partner to my sister, always looking out for others and helping wherever and whoever he can. As a family we are very happy that my sister and Moataz have found each other.

3. The Tribunal gives the written statements of Dr Fadi Dalati and Ms Lina Escalante Gonzalez some weight. The written statements each refer to having known the parties for over 7 years and to having spent time with them as a couple.

4. Photographs showing the parties with family and friends at social occasions in the period from 2016 to 2021 were provided.

5. Based on the evidence, the Tribunal was satisfied that at the time of application the parties represented themselves to other people, including family and friends, as being in a de facto relationship with each other. Further, the Tribunal decided that at the time of decision the parties continue to represent themselves to family and friends as being in a de facto relationship with each other.

   The nature of the parties’ commitment

6. The Tribunal considered the nature of the persons’ commitment to each other including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.

7. The parties claim to have first met on 19 May 2016  and to have commenced cohabitation on 8 October 2016.

8. In a statutory declaration dated 24 January 2018, the applicant said:

   Luisa and I under the same private health care cover with Bupa.

   We plan to get married once we have settled down and have the savings to plan a wedding.
   Luisa went through a difficult time when her cousin Natalia passed away from cancer in Colombia. She also had take care of her sister's children when her sister went to Canada.

   She was extremely stressed during this time, as she had to go to work and finish her

   assignments. I tried to make the situation better for her by taking care of the children and being there for her when she needed me.

   Luisa went to Cambodia on a placement for her Bachelor of Oral at the University of

   Newcastle from 4 January 2018 to 24 January 2018. During this time we maintained contact daily by calling on face time and texting.

9. In a statutory declaration dated 24 January 2018, the sponsor provided similar evidence.

10. In a statutory declaration dated 20 August 2018, the applicant said:

    Luisa is struggling with depression and anxiety. This condition was aggravated when her closest cousin passed away from cancer in August 2017. She was unable to cope with the  loss and at times didn't even eat. Whenever she was crying I had to be next to her to calm her down. I made sure I was there because I did not want her to give up on her studies.

    During this time, Luisa had too many responsibilities. She had to be there for her mother who has a history of depression and her father was recovering from an injury to his shoulder. She was supporting her parents financially, as the father was unable to go back to work All these pressures caused her extreme stress. She started to skip her meals and even started to smoke. I was very patient and calm with her. I fed her on days that she did not want to eat. I took care of all household matters. I even checked up on her mother weekly to make sure she is fine. I tried my best to reduce Luisa's stress because I wanted her to focus on her studies and her career in dental health therapy.

    As soon as I started working I helped Luisa with the finances. I contributed to her parent's expenditure and our own expenses. This helped with Luisa's stress. If I am not in Australia, Luisa will not get the support she requires because she can not ask her parents for financial support. Her parents have their own financial pressures with the father only starting to work recently

    Due to the stress and pressures Luisa was under, her Psoriasis started to flare up. On top of that she recently started feeling severe pelvic pains. I made her go to see her doctor who advised her to see a gynaecologist and to under go an ultra sound as soon as possible.
    ……

    I want to spend the rest of my life with Luisa and do not want to be apart from her. She is the best thing that happened to me and we both can not live without each other.  

11. In a statutory declaration dated 20 August 2018, the sponsor provided similar evidence. She also said:

    I depend on Moataz completely, he has taken care of me during one of the most difficult times I have experienced. I only have Moataz to depend on, as my family members have their own issues to deal with.

12. Prior to the hearing, the applicant provided a written statement which said in relation to the nature of the parties’ commitment:

    We have been together now for around 6 years and 3 months.

    We are always together, and needless to express, we have always spent evenings after work talking about our day, and we help each other grow daily.
    Essentially, we find comfort in talking to each other freely about issues that we face and have ongoing discussions about areas of growth be it from like-mindedness or from where we can have a different view of things.

    we have been together for almost 7 years and are currently engaged to get married, hence definitely it’s a long-term relationship where we intend to be together forever and planned for our future together.

    Our commitment to each other is beyond doubt. We planned and are planning for our lives, future, and family and our commitment to this relationship and each other is indefinite

13. The sponsor attended the hearing by Ms Teams Audio because she was not in Australia at the time. She departed Australia on 28 December 2022 and travelled to Brazil for 2 months. Both parties gave evidence that during the time they have been apart, they have been in daily contact by WhatsApp messaging and/or Facetime calls.

14. A copy of the sponsor's BUPA health insurance cover dated 1 July 2017 was provided. The private insurance statement indicates that the applicant was included as a member to the policy on 10 November 2016.

15. The applicant’s BUPA Private Health Insurance Statement 1 July 2021 to 30 June 2022 for taxation purposes was provided. The statement indicates that the sponsor is also covered under the policy.

16. Regarding whether the requirements of s 5CB(2) were met at the time of application and time of decision, the Tribunal decided:

    • the parties were not married;
    • the parties lived together;
    • they were not related by family;
    • they had a mutual commitment to a shared life together to the exclusion of others; and
    •  the relationship was genuine and continuing.

17. Therefore the applicant meets cl 820.211(2)(a) and 820.221(1)(a).

    Are the additional criteria for a de facto relationship met?

18. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. These are: that the couple are both at least 18 years of age; and with limited exceptions, that the de facto relationship must have existed for at least the period of 12 months ending immediately before the date of the application, unless the applicant can establish compelling and compassionate circumstances for the grant of the visa. The requirement that the relationship existed for 12 months prior to the application does not apply in certain circumstances where the sponsor is or was a humanitarian visa holder, or for applications made on or after 9 November 2009, where the de facto relationship has been registered under a relevant State or Territory law: regs 2.03(4) and (5). These exceptions do not apply in the present case.  The Tribunal accepts on the evidence before it that the applicant and the sponsor were over the age of 18 at the time of application. Therefore, reg 2.03A(2) is met.

19. The Tribunal then considered reg 2.03A(3). The parties claim to have commenced a de facto relationship on 21 August 2016 and cohabitation on 8 October 2016. The Tribunal accepts the evidence provided by Ms Yahyaoui that the parties were residing together with her from 8 October 2016. The application was lodged on 25 October 2017. The Tribunal is satisfied that the de facto relationship existed for at least the 12-month period ending immediately before the date of the application. For these reasons the Tribunal is satisfied that the applicant meets the additional criteria prescribed in reg 2.03A.

    Does the applicant meet Schedule 3 criteria, or should those criteria be waived?

20. 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)(ii).

21. 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

22. 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 criterion 3001(2), as set out in the attachment to this decision. Departmental records show that the applicant last held a substantive visa on 15 March 2014, being the relevant day. The Partner visa application was lodged on 25 October 2017.  As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

    Compelling reasons

23. 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.

24. 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. The decision in Waensila means that a decision maker is not confined to having regard to circumstances that amount to compelling reasons only at the time of application and that the applicant’s circumstances as a whole are to be taken into account.

    Evidence provided to the Department 

25. In a written submission dated 22 August 2018 from the applicant’s representative, the following information was provided in response to an Invitation to Comment on Schedule 3 criteria:

    • The applicant did not return to Lebanon at the expiry of his student visa on 15 March 2014 as he was worried about the risk to his life. On 21 August 2014, he made an application for a Protection visa on the basis that he will be subject to persecution if he were to return to Lebanon due to the actions of Hezbollah group and radical Sunni groups. The Department refused the applicant's application for a Protection visa and the Tribunal affirmed the Department's decision. This application was ultimately dismissed by the Federal Circuit Court.
    • The applicant and the sponsor are in a long-standing relationship.
    • The sponsor was diagnosed with depression, acute stress and anxiety due to external pressures that exist in her life including the passing away of her cousin in 2017 from bowel cancer.
    • The sponsor is studying a degree in dental therapy and the applicant provides her with support to get through her studies during periods of stress and anxiety.
    • The sponsor suffers from fluctuating eating habits and stress has caused her to turn to drinking and smoking. The applicant has been beneficial towards her recovery by ensuring the sponsor is eating properly and by encouraging her to avoid alcohol.
    • The sponsor supported her parents financially as a result of her father's health and inability to work (her father has recently started work again). This responsibility has added to her fragile mental state. Since being granted permission to work the applicant has helped alleviate the financial pressures and contributes to supporting the sponsor's parents financially.
    • The sponsor's Psoriasis flared recently and this is highly likely due to stress.
    • The sponsor recently started experiencing severe pelvic pains. The applicant encouraged her to visit her GP regarding the pains.
    • During these health complications, the sponsor has stated that the applicant helped her to remain calm. He also provided support around the house when the pelvic pain was too overbearing.
    • The sponsor's mother has a history of mental health issues. She has severe depression and the sponsor stresses about her condition. The applicant provides support to the sponsor by visiting her mother when she is unable to do so.  
    • The departure of the applicant would destroy the family unit which he and the sponsor have formed and would force the sponsor to leave Australia with the applicant as they cannot live separately. The sponsor would have to live in conditions well below the Australian living standards and she will not have access to proper health care including psychologists for her depression, stress and anxiety. The sponsor will suffer psychological harm if she was to live in Lebanon as it would worsen her mental health, and also cause her to worry about her parents' health.
    • The sponsor further requires access to health care for her skin condition and for the diagnosis of her severe pelvic pains.
    • The sponsor will be forced to forgo her studies and will have to sacrifice her career in dental therapy if she moves to Lebanon.
    • The applicant's departure from Australia will be detrimental to the sponsor's health.

26. In a statutory declaration dated 20 August 2018, the applicant said:

    Luisa and I cannot live apart. If I were to leave Australia back to go back to Lebanon, we would have no choice but go to Lebanon together.

    If Luisa lives in Lebanon she will not have access to proper health care which she requires for her skin condition and to diagnose the reason for her pelvic pains with any treatments she requires after

    If Luisa was in Lebanon with me, she will not have to access to psychological care          that helps her manage her stress and depression.

    When I was back in Lebanon my family and I were subject to harassment by the terror group Hezbollah as we were of Sunni identity. …. As a result, If I were to return to Lebanon with Luisa both of our lives will be at a risk.

27. In a statutory declaration dated 20 August 2018, the sponsor said:

    I have had a lot of emotionally stressful situations recently which I would not have been able to cope with if Moataz was not in Australia and supporting me physically and emotionally. The thought of having him away from me is very overwhelming and I cannot imagine where my life would be now if not for his constant support.  

    My cousin, who I was very much close to passed away from cancer in August 2017. This was a very difficult time for me and I felt depressed and felt as if I had no purpose in life. Moataz was with me every time I felt extremely sad. He motivated me to keep studying and to attend work on days that I did not even feel like waking up.

    I was also worried about my mother, as she was finding it difficult to cope with my cousin's death. My mother has a history of severe depression which has even led to suicidal thoughts. He would visit my mother to check up on her when I was feeling upset and did not want to leave our apartment.

    At one point I had to support my mother, myself and Moataz financially. This was very difficult for me as I was studying part time and working. This stress and anxiety were a lot for me to bare that I completely lost my appetite. I started smoking and drinking again due to the stress.

    At times that I could not eat, Moataz would feed me even a little to make me strong for the day. He was very patient and understanding with me. If he were not there, my mental and physical health would have been worse, and I would not have been able to pick myself out of that situation.

    After Moataz received permission to work and began working he has provided financial support to me and my family, which has reduced my stressed tremendously.

    I am aware that the Department does not require for me to leave with him for us to lodge the partner visa from overseas, but I cannot see any other way that I can manage my life without Moataz without me. If he had to depart Australia, I would have no choice but leave Australia with him.

    If I were to leave Australia with Moataz to return to Lebanon I will not have access to the mental health support that I require.

    I am currently suffering from Psoriasis which is a skin condition and it requires me to see a dermatologist for monthly treatment. If I were to return to Lebanon I would not have access to proper Medicare to treat my condition.

    I recently started getting severe pelvic pains and my GP referred me to see a gynaecologist and to undertake an ultrasound. … If I were to reside in Lebanon with Moataz I will not have access to proper health care system to carry out treatment for my pelvic pain. ….

    I will also be separated  from my mother who requires my support, as she is battling with her own mental health issues.

    I need to be close to my father to look after him to help him recover from his injury.

    I am currently studying dental therapy at the University of Newcastle. Should I be forced to depart Australia to live with Moataz I will have to give up my studies that I have invested so much of my effort and time.

    The security in Lebanon is very low and my life would be at risk if I were to return to Lebanon with Moataz, especially as Moataz was subject to life threats when he used to live in Lebanon by the terror group Hezbollah and by radical Sunni groups.

    I depend on Moataz completely, he has taken care of me during one of the most difficult times I have experienced. I only have Moataz to depend on, as my family members have their own issues to deal with.

28. A report dated 16 February 2018 made by psychologist Mr Ji Fang Zhou which included the following:

    • The sponsor’s immediate family consists of her parents, older sister, brother-in-law and their two children who all reside in Sydney. She has always been close to her immediate family.
    • The sponsor reported she had not experienced any significant mental health issues prior to 2017. Her mother was reported to have experienced depression in the past. The sponsor reported consistently being a key support for her mother in the past.
    • The sponsor’s main presenting issues were high levels of stress due to relationship, family and financial issues. At the time her partner was considering leaving Australia for a substantial period. There was disagreement between them about this as she preferred her partner to remain in Australia. If he left Australia she planned to accompany him. This would have meant putting a career on hold, as well as financial hardship due to not being able to work overseas. She reported she experienced severe stress during the period her partner was considering leaving Australia.
    • At the same time the sponsor was facing this relationship issue, she also encountered several other stressors. She reported her cousin in Colombia was diagnosed with terminal cancer and passed away in August 2017. She reported worrying about her mother's mental state due to the severe grief she was experiencing. This added to the stress experienced by the sponsor.
    • The sponsor reported worrying about her father's health. He has a number of

    serious injuries to his shoulder and back and had been unable to work and was on worker's compensation before returning to work last year.

    • When the sponsor presented for treatment, she was experiencing a range of acute stress, anxiety and depressive symptoms due to the range of stressors outlined above. Signs of problematic eating and substance use as coping mechanisms were also present.  In addition she re-commenced smoking and her alcohol consumption substantially increased to levels of severe intoxication on the weekends. Physically she reported experiencing a severe relapse of Psoriasis (a skin condition) during this period. Her sleep was reportedly poor and she experienced severe sleep bruxism (teeth grinding). Her emotions during this period were characterised by sadness, anger, numbness and disconnectedness. She reported this range of symptoms were most severe for a three week period during which her partner seriously considered leaving Australia. The symptoms gradually improved when he decided to stay.
    • The sponsor was often observed to exhibit stressful, low and anxious affect, particularly in early sessions. She also appears distressed when speaking about various stressors, in particular the possibility of her partner leaving Australia.
    • A number of psychometric tests were administered to assess the sponsor’s psychological wellbeing. The Depression, Anxiety, Stress Scale was administered on 21 July 2017. Her responses indicate she was experiencing severe levels of stress, moderate levels of anxiety and mild levels of depression, which is consistent with her verbal reports and presentation in session. The Outcome Rating Scale (ORS) was first administered to on 28 July 2017. Her score was 20 out of a maximum of 40. This indicates her general life satisfaction is average. Her scores for the life domains of

    Personal Wellbeing, Family and Close Relationships and General Wellbeing were consistently low. The low level of satisfaction with these life domains were attributed to the relationship and family stressors she was experiencing at the time. Her score for the life domain of Work, School and Friendships was high due to high work satisfaction.

    • The focus of the treatment for the sponsor was psychoeducation about stress and grief, and the development of psychosocial strategies to better cope with stress. She experienced a substantial increase in life demands during 2017 which exceeded her available resources, which led to the stress, depression, anxiety, physical symptoms and unhealthy coping behaviours detailed above.
    • In February 2018, the sponsor’s psychological wellbeing has improved substantially as a result of these strategies. She reported her partner has been the key support person throughout the challenging period she experienced. He has provided emotional support, as well as practical support to her when she was ill.   She experiences a greatly improved sense of security when her partner is present to support her. Her level of stress was extremely high in 2017 when there was the distinct possibility she would be separated from him, which greatly improved once he decided to stay.
    • The sponsor reported she is very worried about possible separation from her partner due to him needing to leave Australia to apply for Partner visa. This is because she would lose her key support person during an ongoing period of personal challenge. She feels she could not ask her immediate family for support due to the pressures they themselves are under. She worries about a return of more severe stress, anxiety, depression and physical symptoms and unhealthy coping behaviours; and the resultant negative impact on her self-esteem.
    • In my opinion there is an increased risk of a relapse of the sponsor’s severe stress and related symptoms should she be separated from her partner. Having a trusted and available support person is a key protective factor for good mental health, and the loss of such a support person is likely to have substantial negative effects.

    It should be noted the sponsor is at increased risk of developing a depressive disorder due to her family history and recent stressful life events. She is also at increased risks of developing an eating or substance use disorder as these were used as coping mechanisms for psychological distress. For the reasons outlined above, separation from her partner increases the risk of severe negative impact on her psychological wellbeing and social functioning; as well as decreases her chances of coping with ongoing stressors in a healthy and effective manner.

    Evidence provided prior to the hearing

1. A written submission dated 1 February 2023 from, the representative included the following submission:

   The applicant and sponsor put forward reasons which they argued were compelling reasons for waving the Schedule 3 criteria. The reasons were recorded and included:

   (i)Statutory declarations dated 24 January 2018;

   (ii)Report from Jiu Fang Zhou- Psychologist dated 16 February 2018;

   (iii)Application for a Partner visa;

   (iv)report from Mr Tim Watson Munro – Consultant Psychologist dated 30 January2023;

   (v)Letter from Landlord and Tenant Ledger;

   (vi)Form 888 from Maria Henao Caicedo, Refad Bader and Fadi Dalati;

   (vii)Photographs;

   (viii)Personal Statements; and

   (ix)Country Information on Lebanon.

2. In his report, Mr Watson-Munro provided the following relevant information:

   • The sponsor was interviewed utilising telehealth facilities in the context of her current work in Brazil, where she is training as a dancer to perform in the upcoming Carnival.
   • The sponsor has experienced significant symptoms of anxiety, depression and stress for many years, as reflected in her treatment with Mr Ji Fang Zhou in 2018. She continues to suffer escalating symptoms, which are essentially a function of the uncertainty referable to her partner’s capacity to remain in Australia. She reported that should he be required to depart, she would find it extremely difficult.  
   • It is clear from her history that the sponsor will suffer significant psychological harm should her partner be required to leave Australia. 
   • The sponsor has a sister, who is domiciled in Australia, as are her parents. She describes a positive and supportive relationship with all members of her family.
   • The sponsor reported that her parents made major sacrifices in order for her and her sister to have a “better life in Australia” and she feels her education and professional standing in the community now will amount to very little if she is required to relinquish her life in order to travel to Lebanon to be with her partner.  
   • The sponsor acknowledged longstanding symptoms of depression, anxiety and low self-esteem. There have been a number of stressors in her life that have contributed to the conditions, including a cousin’s death in August 2017. More recently, her maternal grandmother died towards the end of 2021. This had a dramatic impact upon her and her mother. In addition, her mother has suffered significant depression and for a time was on anti-depressant medication.
   • The sponsor reported that she has been particularly stressed by the uncertainty regarding her partner’s status in Australia. She attended Mr Ji Fang Zhou in 2018 and underwent six treatment sessions under a Mental Health Care Plan.
   • The sponsor reported that there has been an escalation in her symptoms of depression. She reports ongoing feelings of stress, a sense of hopelessness regarding the future, sadness, sleep disturbance and some cognitive intrusion impacting upon decision-making and concentration. She reports escalating agitation and some variation in sleep and appetite.
   • The sponsor has derived significant emotional support from her partner and attendant to this, expressed considerable anxiety regarding the possibility of him being required to leave Australia. When questioned more closely about this, the sponsor stated “it is very hard to think this… in so many ways… I’ve worked so hard to work and study to build a business… it would be hard for me to throw away all I’ve worked for”. In addition, she expressed deep distress about her family and the impact that her living offshore will have upon them. She further reported that she is keen to establish a family with her partner. She stated “my biological clock is ticking… I can’t try to fall pregnant until this is resolved”.
   • In his report Mr Zhou noted and described the sponsor’s progress in treatment is using “psychoeducation” referable to stress and grief, in addition to developing strategies to cope with stress.  Mr Zhou further describes the impact of separation from her partner upon the sponsor, noting “she would lose her key support person during an ongoing period of personal challenge”. Mr Zhou opines “there is an increased risk of a relapse of Ms Escalante’s severe stress and related symptoms should she be separated from her partner... Having a trusted and available support person is a key protective factor for good mental health, and the loss of such a support person is likely to have substantial negative effects”. It is apparent on the basis of my assessment that her symptoms are now escalating, in the context of ongoing uncertainty regarding her partner’s capacity to remain in Australia.
   • The sponsor impresses as an intelligent and essentially psychologically stable woman, who nonetheless is currently battling symptoms of depression and anxiety, referable in particular to the uncertainty regarding her partner’s situation in Australia.
   • The sponsor is anxious regarding the future. She stated that she has worked long and hard to establish herself in her profession and in addition, she enjoys a supportive and loving relationship with her family. She fears for their psychological well-being if she is required to relocate to Lebanon.

3. Prior to the hearing the Tribunal requested the representative to identify the country information which had been referred to in the written submission dated 1 February 2023. In response, the representative provided the following articles:

   ·Mental health in Lebanon: Tomorrow's silent epidemic by Natali Farran. This article referred to the causes of poor mental health in Lebanon including the impact of COVID-19 ,the Beirut 2020 explosion and insufficient public and mental health services. The article stated that mental health services in Lebanon are scarce and fragmented, and that mental health needs of many individuals in Lebanon are not being adequately met.

   ·The need to shift to a contextualized and collective mental health paradigm: learning from crisis-hit Lebanon by Tania Bosqui. This article refers to the causes of poor mental health in Lebanon including the impact of COVID-19 and the Beirut 2020 explosion. It says the current provision of mental health care in Lebanon is predominantly through the private health care system to which many low-income and marginalized people have no access (WHO, 2017).

   ·Mental Health in Lebanon  by Maxwell Haigney (August 17, 2022). This article says Lebanon’s economic, political, and health crises have adversely impacted the mental health of people across the country. The COVID-19 pandemic, continuing economic crisis, and trauma of the Beirut blast have drastically increased the need for mental health support. The article says that while the demand for mental health support has increased, the availability of treatment has lagged behind. 

   ·RESEARCH ARTICLE- Food insecurity and mental health of college students in Lebanon: a cross-sectional study by Rita Itani, Lama Mattar, Samer Kharroubi, Tania Bosqui, Marwa Diab-El-Harake and Lamis Jomaa. The article states that the study aimed to assess the prevalence of food insecurity  among college students and explore its association with indicators of mental and psychosocial health.

4. The written submission dated 1 February 2023 sought to rely on the following decisions:

   ·    The decisions in Malhi v Minister for Immigration and Border Protection [2017] FCCA, Kayikci v Minister for Immigration and Citizenship [2009] FCA 92 and Singh v Minister for Immigration and Border Protection [2016] FCCA 114  in relation to  the conduct or motive at the commencement of the relationship not being determinative of whether the parties’ relationship at the time of the Tribunal decision is genuine and continuing. 

   ·    The decisions in SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 (SZLGP) and  Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 and the reasons why the court set aside the decisions of the Tribunal in those matters including failures in the reasoning of the Tribunal.

   ·    The decision in Stretton v Minister for Immigration and Border Protection (No 2) [2015] FCA 559  regarding an “outcome-focussed” decision.  

   ·    The decision in ATT20 v Minister for Immigration and Border Protection [2020] FCCA 499 as authority for the proposition that the Tribunal must deal with the applicant’s contention that a combination of circumstances amounted to compelling reasons in his case and whether a combination of his reasons and circumstances amount to compelling reasons for the purpose of meeting cl.820.211(2)(d)(ii).

   ·    The  decision in MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478 as authority for the proposition that the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred.

   ·    The decision in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108: the issue considered by the court was whether an adverse finding made by the Tribunal failed to identify the evidence or other material on which it was based. This decision involved the Tribunal’s conclusions regarding the applicant’s claim to be a Falun Gong practitioner.

1. The decisions referred to above appear to essentially set out what is required of the Tribunal in making a decision including the issues to be determined in relation to the nature of a partner relationship and whether compelling reasons exist for the purposes of whether Schedule 3 criteria are met.

   Evidence provided at the hearing

   Applicant’s evidence

2. The applicant told the Tribunal that if he is required to return to Lebanon he will face a dangerous and life threatening environment. He said he was previously prepared to return because his mother is very sick, however the sponsor could not accept him leaving Australia so he decided not to go. He said despite feeling unsafe in Lebanon, he was prepared to go because his mother was, and remains, very sick. He said things have deteriorated in Lebanon and there is no medication and no food.

3. The applicant described the life stressors faced by the sponsor in recent years, including her cousin’s death, her grandmother’s death, her parents’ health issues and her own health issues. He said if he is required to depart Australia, he is worried about her anxiety and mood.

4. The applicant told the Tribunal that if he is required to depart Australia, the sponsor will not return to Lebanon with him because she would have no life there. He said she has a very good job in Australia.

5. The applicant told the Tribunal that the sponsor wants to start a family with him. He said this has been delayed because of the uncertainty around his visa. He said he has a daughter living overseas and he does not want to have another child he will not see. The applicant said their lives have been in limbo for 5 or 6 years and the sponsor deserves to be able to have a child.

   Sponsor’s evidence

6. The sponsor told the Tribunal that she and the applicant have been together for a long time. She said she will soon be 35 years old and she wants to start a family, She said they have been putting off starting a family because she needs the applicant’s support if they have a child. She said she also has medical issues which may cause problems falling pregnant and increasing the risk of miscarriage.

7. The sponsor told the Tribunal that she suffers with anxiety and this is exacerbated by not knowing whether the applicant will be permitted to remain in Australia. She said she sought professional assistance in 2018 and she has used the strategies provided to improve her physical and mental health. These strategies include dance and exercise. She said despite feeling healthier, the thought of the applicant departing Australia is still very scary to her.

8. The sponsor told the Tribunal that if the applicant returns to Lebanon to lodge an offshore Partner visa application, she will visit him but she will not live there with him. She said she cannot leave her work. She said she has worked very hard to build up her patient list. She said she also needs to work to provide financial support to her parents. She said her parents each have part-time employment however she and her sister provide them with financial assistance also.

9. The sponsor said her skin condition worsens with stress. She said her pelvic pain comes and goes and is generally better when she is in good physical health.

10. Noting that Mr Zhou said the sponsor attended 6 times, the Tribunal asked her whether she underwent any professional treatment for her mental health from 2019 to 2022.  She said she exercised, walked and meditated but did not seek any professional treatment.

11. Regarding her previous stressors, including the deaths of her cousin and her grandmother, the sponsor said she needs the applicant’s support to deal with such difficulties. She said apart from her immediate family, her family are not in Australia and cannot support her during times of sorrow. 

12. The sponsor told the Tribunal that her mother’s mental health is up and down and when she is at work and her sister is busy with her children and her work, the applicant checks up on her mother for them. She said she needs this support from the applicant.

13. In relation to Mr Watson-Munro’s report, the sponsor said she spoke to him on one occasion only in a one hour telehealth interview.

14. The Tribunal asked the sponsor whether she had any concerns about the applicant living in Lebanon. In response, she said she is worried about COVID-19 and his safety. She said he will not earn much money in Lebanon and that will increase the financial pressure on her.

15. Regarding her current mental health, the sponsor said she fears her mental health will deteriorate if she and the applicant have to live apart for significant period while his Partner visa application is processed. She said she wants to continue their life together in Australia and start a family. She said her life has been on hold because of the applicant’s visa uncertainty.

    Overall assessment

16. The Tribunal has considered the factors relevant to the case including those raised by the applicant, the sponsor and the representative.

17. The Tribunal accepts that the parties have been in a long standing relationship. The existence of a long standing genuine de facto relationship does not in itself constitute a compelling reason for not applying the Schedule 3 criteria. The Tribunal noted that the existence of a genuine relationship is an essential requirement for the grant of the visa and in the circumstances of this particular case, the Tribunal was not satisfied that the parties’ relationship in itself constitutes a compelling reason.

18. In relation to the applicant’s claim that his life would be in danger if he returned to Lebanon,  he told the Tribunal that he had considered returning at one time because his mother is very sick. He said he decided not to return because of the sponsor’s objections. In his oral evidence the applicant referred to a lack of medication and food and in the written evidence he said he would be subject to harassment by the terror group Hezbollah. There was no evidence before the Tribunal to substantiate the applicant’s claim that his life would be in danger if he returns to Lebanon. Accordingly, the Tribunal was not satisfied that the claim  constitutes a compelling reason.

19. There was no evidence before the Tribunal to substantiate the contention that the applicant would have difficulty finding employment in Lebanon. The Tribunal accepts the evidence provided regarding food insecurity among college students but notes it does not appear to be relevant to the applicant’s circumstances.

20. The applicant and the sponsor’s clear evidence to the Tribunal was that if the applicant is required to depart Australia, the sponsor will not relocate with him. Therefore, the evidence regarding the lack of suitable mental health care in Lebanon and the sponsor’s inability to work in Lebanon, are not relevant to the Tribunal’s consideration of compelling reasons.

21. The written and oral evidence before the Tribunal included evidence of the sponsor’s previous and current mental health issues and her dependence on the applicant’s emotional and practical support. The Tribunal noted that Mr Zhou’s report is 5 years old however Mr  Watson-Munro recently reviewed the sponsor and opined that based on his own assessment, the sponsor’s symptoms are escalating in the context of ongoing uncertainty regarding her partner’s capacity to remain in Australia. The Tribunal accepts the evidence in relation to the sponsor’s emotional fragility when experiencing significant stressors and the potential serious risks to her physical and mental wellbeing. Based on the evidence, the Tribunal finds that the likely hardship which would be suffered by the sponsor if the applicant departs Australia goes beyond the hardship that may be suffered when parties are separated and an applicant is forced to apply for a Partner visa outside of Australia.

22. In addition, the Tribunal accepts the applicant’s evidence that he and the sponsor want to start a family and that would be delayed for a significant period if he is required to apply for a Partner visa offshore. The Tribunal accepts the sponsor’s evidence in this regard and also accepts her evidence in relation to potential difficulties falling pregnant and miscarrying.

    Conclusion

23. In assessing whether there are compelling reasons for waiving the Schedule 3 criteria, the Tribunal is required to assess the evidence. The Tribunal has considered all the circumstances of the applicant’s case, his oral evidence and the oral evidence of the sponsor.

24. Having considered the evidence before it, the Tribunal is satisfied that there are compelling reasons for not applying theSchedule 3criteria in this case. In making this determination the Tribunal gives significant weight to the likely emotional difficulties and physical difficulties described that may arise for the sponsor during separation while waiting for a Partner visa application to be processed, the length of the parties’ relationship and the parties’ desire to start a family and the difficulties they may encounter in doing so. Accordingly, the applicant meets cl 820.211(2)(d)(ii).

25. 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

26. 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)(a) of Schedule 2 to the Regulations

    ·cl 820.221(1)(a) of Schedule 2 to the Regulations

    ·reg 2.03A

    ·cl 820.211(2)(d)

    Christine Kannis
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A     De facto partner and de facto relationship

    (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

    Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
    Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).