Vikas (Migration) - [2022] AATA 4459

Vikas (Migration) [2022] AATA 4459 (6 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Vikas
CASE NUMBER:  2111292
HOME AFFAIRS REFERENCE(S):          CLF2012/223368 CLF2012223368
DEPUTY PRESIDENT:  Antoinette Younes
DATE:6 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2)(a) of Schedule 2 to the Regulations;
·cl 820.221(1)(a) of Schedule 2 to the Regulations; and
·cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations.

Statement made on 06 October 2022 at 11:39am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remittal – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – Apprehended Domestic Violence Order (AVO) – Schedule 3 criteria – application lodged outside of relevant timeframe – factors beyond applicant’s control – compelling reasons for waiver – sponsor’s mental and physical health condition – financial hardship – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221; Schedule 3, Criterion 3001, 3004
CASES
He v MIBP [2017] FCAFC 206
Waensila v MIBP [2016] FCAFC 32
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 Immigration and Border Protection 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 30 October 2012 based on his relationship with his sponsor, Ms Donna Maree Wright, who was born in Australia on 3 November 1976 and is an Australian citizen.
3. 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.
4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2)(d)(ii) because the applicant did not meet the Schedule 3 criteria, as he did not hold a substantive visa at the time of the visa application. Further, the delegate was not satisfied that there were compelling reasons for not applying those criteria.
5. This matter has been before the Tribunal (differently constituted on three different occasions). It has been remitted for reconsideration.

The applicant appeared before the Tribunal on 13 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Consideration of claims and evidence
By way of background, the delegate’s decision record indicates that the applicant first arrived in Australia on 5 June 2008 on a subclass 573 Student visa, which ceased on 10 November 2010. He has not held a substantive visa since that date.

9. The applicant claims that he and the sponsor first met in December 2010 when he was visiting Griffith. They claim that their relationship developed in August 2011 when the applicant moved into the home of the sponsor. They were married on 18 December 2011.
10. On 24 March 2014, the Department invited the applicant to make submissions concerning Schedule 3 criteria. The applicant made submissions that the parties are in a genuine and continuing relationship, and that the applicant has a positive influence on and plays a positive role in the lives of the sponsor’s children.

In support of the visa and review applications, the applicant provided documents including Statements of the applicant and the sponsor, Statutory Declarations of witnesses (including Forms 888), Health Summary Sheet and medical reports relating to the sponsor, Centrelink documents relating to the sponsor’s health, joint NAB bank statements, a marriage certificate, joint electricity bills, Dodo account invoices in the applicant’s name showing joint residence, logs of telephone calls and texts, applicant’s MLC Super account nominating the sponsor as a 100% beneficiary, joint NRMA Certificate of Currency in relation to a vehicle, applicant’s Tax Notice of Assessment for the year ending June 2022, an Apprehended Domestic Violence Order (‘AVO’), receipts, and photographs of the couple.
Whether the parties are in a spouse or de facto relationship
Are the parties validly married?
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 spouse of the sponsor who is an Australian permanent resident.
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The couple has provided a Marriage Certificate showing that they married on 18 December 2011.
On the evidence, the Tribunal finds that the parties are 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?
At the time of application, the applicant must satisfy cl 820.211. Subclause 820.211(2)(a) requires that, at the time of application, the applicant is the spouse or de facto spouse of the sponsor, as defined in s 5F and s 5CB of the Act.
Given that the couple is married, the relevant provision is s 5F of the Act.
Section 5F provides that a spouse is:
(1)For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2)For the purposes of subsection (1), persons are in a married relationship if:
(a)   they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)   they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c)   the relationship between them is genuine and continuing; and
(d)   they:
(i)live together; or
(ii)do not live separately and apart on a permanent basis.
(3)The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Regulation 1.15A(3) makes provisions for matters to be taken into account in making a determination relating to s 5F. These matters include:
·the financial aspects of the relationship;
·the nature of the household;
·the social aspects of the relationship; and
·the nature of the persons’ commitment to each other.
Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Financial aspects of the relationship
In determining this aspect, the Tribunal considers matters such as joint ownership of assets, joint liabilities, extent of pooling of financial resources, any legal obligations owed to the other party, and any sharing of day-to-day household expenses.
At the time of application, the couple provided a bank statement from the National Australia Bank (‘NAB’) for a joint account. The statement shows their residential details.
The Tribunal acknowledges that at the time of application, there was limited evidence in relation to the financial aspects of the relationship. The Tribunal is, however, mindful of the couple’s circumstances at that time, including date of marriage and limited financial resources.
The couple has provided documents to the Tribunal, including recent statements for the joint NAB account showing regular transactions. The Tribunal gives the NAB account weight as evidence of financial aspects of the relationship being consistent with a spousal relationship. The applicant has nominated the sponsor as his sole beneficiary for superannuation purposes.
On balance, the Tribunal is satisfied that the financial aspects of the relationship are consistent with a spousal relationship.
Nature of the household
In assessing this aspect, the Tribunal considers matters such as joint responsibility for care and support of children, the parties’ living arrangements, and sharing of housework.
The NAB joint account and other documents show the couple’s residential details. The Tribunal gives weight to that account as evidence that the couple lived together from at least 26 July 2012.[1] In their statements in support of the visa application, the couple indicated that they started living together in August 2011. The Tribunal accepts this as being plausible.
[1] The NAB joint account shows transactions commencing as early as 26 July 2012.
The couple gave evidence that the sponsor’s two oldest children no longer live with the couple, and that the sponsor’s daughter, aged approximately 14 years, lives with the couple. The sponsor gave evidence that there are challenges with the daughter, including school attendance and behavioural issues of concern.
The couple has claimed that the couple has continued to live together as husband and wife, and the Tribunal accept this on the evidence. The sponsor has been unwell, and she told the Tribunal about the applicant’s support, including emotional support as well as assisting with household chores. She told the Tribunal that the applicant helps with the administration of her medication.
The Tribunal is satisfied that the nature of the household is consistent with a spousal relationship.
Social aspects of the relationship
In determining this aspect, the Tribunal considers matters such as 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.
The couple has provided Statutory Declarations from friends referring to the couple’s relationship and its genuineness. There are photographs of the couple together and of the couple with their friends.
The Tribunal is satisfied that the social aspects of the relationship are consistent with a spousal relationship.
Nature of persons' commitment to each other
In determining this aspect, the Tribunal considers matters such as duration of the relationship, length of time they have lived together, degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.
The couple provided to the Tribunal multiple Statutory Declarations from friends (including Forms 888) that refer to the couple’s commitment to one another.
During the hearing, the sponsor referred to the support provided by the applicant, particularly emotional support, given her health challenges. The Tribunal requested and received a copy of the AVO protecting the sponsor against the applicant. The applicant gave evidence that the police took out the AVO as a result of alcohol consumption. The Tribunal has carefully considered the AVO, which was in operation for two years from 14 August 2020; the AVO did not prevent the applicant from living with the sponsor but ordered him, among other things, not to assault or threaten her, and not to approach her for at least 12 hours after consuming alcohol or any illicit drugs. The Tribunal is concerned about this history, but on balance, the Tribunal is satisfied that the couple’s commitment to one another is consistent with a spousal relationship.
FINDINGS & REASONS
Clauses 820.211(2)(a) and 820.221
On the evidence, the Tribunal is satisfied that the couple has a mutual commitment to a shared life to the exclusion of others, that the relationship is genuine and continuing, and that the couple lives together.
On the basis of the above, the Tribunal is satisfied that the requirements of s 5F(2) were met at the time of the visa application. Therefore, the applicant meets the requirements of cl 820.211(2)(a). Further, on the evidence, the Tribunal is satisfied that the applicant meets cl 820.221(1)(a).
Clause 820.211(2)(d)(ii)
Clause 820.211(2)(d)(ii) provides that an applicant meets the requirements of this subclause if the applicant, who is not the holder of a substantive visa, satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
Criterion 3001 of Schedule 3 requires that the visa application must be lodged by the applicant within 28 days after ‘the relevant day’. For the purpose of this application, the relevant day is the last day the applicant held a substantive visa. It is not in dispute that the partner visa application was not made within 28 days of ‘the relevant day’ as defined. The Tribunal finds that the applicant does not satisfy criterion 3001. Criterion 3003 of Schedule 3 only applies if the applicant entered Australia unlawfully or did not hold a valid entry permit. The applicant entered Australia lawfully on 5 June 2008 on a subclass 573 Student visa. Criterion 3004 applies in case of an applicant who ceased to hold a substantive or criminal justice visa on or after 1 September 1994, or entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa.
The applicant entered Australia on 5 June 2008 on a subclass 573 Student visa, which ceased on 10 November 2010. He has not held a substantive visa since that date, so he does not satisfy Criterion 3004, unless he can demonstrate that not holding a substantive visa was beyond his control, that there are compelling reasons for granting a partner visa, that there has been substantial compliance with visa conditions, that there is an intention to comply with any partner visa condition, etc. Given that there are common grounds for consideration under the waiver provisions and factors for consideration in Criterion 3004, the Tribunal will now consider if there are compelling reasons for not applying those criteria.
The Explanatory Statement[2] which accompanied the introduction of the relevant provisions stated that the inclusion of a ‘waiver’[3] provision was in recognition of the hardship that may result, in circumstances where an unlawful non-citizen seeks to apply for a partner visa but would otherwise be forced to leave Australia and apply offshore. The Department’s policy guides decision makers to consider the circumstances that resulted in the applicant becoming unlawful and whether the circumstances are beyond the applicant’s control, in considering the provision.[4]
[2] Explanatory Statement to Statutory Rules 1996, No 75.
[3] In Singh v MHA [2020] FCAFC 7, Derrington J commented in obiter at [61] that the language of ‘waiver’ in the Explanatory Statement is incongruous with the terms of cl.820.211(2)(d). The term ‘waiver’ implies a discretionary aspect to the assessment of the existence of compelling reasons; however cl 820.221(2)(d) requires the formation of a state of satisfaction.
[4] Policy - Migration Regulations - Sch2 Visa 820 - Partner - The UK-820 primary applicant – Eligibility at [8.7] (re-issue date: 19/11/2016).
However, while the circumstances highlighted in the Department’s policy will often be relevant to the assessment of cl 820.211(2)(d)(ii), the Tribunal needs to consider if an applicant’s ‘compelling reasons’ are not limited to the circumstances surrounding their unlawful status. The Tribunal must consider all the circumstances of the case, including those arising after the lodgement of the visa application, up to the time of decision,[5] and any matters put forward by an applicant. The Tribunal needs to consider the evidence as a whole and determine whether there are compelling reasons for not applying the Schedule 3 criteria.[6] Furthermore, compelling reasons in cl 820.211(2)(d)(ii) are not limited to circumstances that are beyond the applicant’s control.[7]
[5] Waensila v MIBP [2016] FCAFC 32 at [22], [59].
[6] MZYPZ v MIAC [2012] FCA 478 at [12]. See also ATT20 v MIBP [2020] FCCA 499 and Daneshpour v MIBP [2020] FCCA 879.
[7] Choi v MIBP [2018] FCA 291 at [33].
There is judicial support for the Departmental policy that, as a general rule, the existence of a genuine spouse or de facto relationship between the applicant and the sponsoring partner, and the hardship that may be suffered if the parties are separated and the applicant is forced to apply for a partner visa outside of Australia, should not of itself amount to compelling circumstances. The Court has found no error in the Tribunal’s finding that the existence of the following circumstances, of themselves, do not amount to compelling circumstances: marriage of less than a year in duration;[8] a long-term relationship;[9] or a genuine relationship.[10] However, it would be incorrect to suggest that a genuine relationship (or other similar circumstance) can never amount to a compelling reason.
[8] Sidhu v MIBP [2014] FCCA 167.
[9] Chan v MIBP [2017] FCCA 2883 at [14].
[10] Nazir v MIBP [2018] FCCA 861 at [29]–[30]. In Choi v MIBP [2018] FCA 291 at [34]. See also Hassan v MICMSMA [2020] FCCA 2385 at [62]–[63.
In essence, whether the circumstances are ‘compelling’ will be a matter of fact and degree for the Tribunal to determine. Further, the purpose of the provision is a relevant consideration for the Tribunal to take into account.[11] In the context of cl 820.211(2)(d)(ii), that purpose is to deal with cases where there are compelling reasons for not subjecting particular applicants to the hardship of having to leave Australia to apply for a partner visa.[12] The Tribunal is not obliged to apply international treaty obligations, such as the United Nations Convention on the Rights of the Child, in ascertaining whether ‘compelling reasons’ exist for the purposes of cl 820.211(2)(d)(ii).[13]
[11] Al Souhmarani v MIBP [2016] FCCA 2866 at [26].
[12] Al Souhmarani v MIBP [2016] FCCA 2866 at [18], citing Griffiths J in Waensila v MIBP [2016] FCFAC 32.
[13] Singh v MHA [2020] FCAFC 7 at [62]. The Court applied the principles in Kaur v MIBP [2017] FCAFC 184 (where the Court found that the Tribunal is not bound to apply international treaty obligations in the context of the PIC 4020 waiver).
In considering whether there are compelling reasons for not applying Schedule 3 requirements, the Tribunal is required to have regard to circumstances that existed at the time of application and circumstances that arose after the time of visa application.[14] In Waensila v MIBP,[15] the Full Federal Court held that Tribunal erred in failing to take into account events or circumstances that emerged after the date of the visa application, in considering whether there were compelling reasons for not applying Schedule 3 criteria. The Court observed that the purpose of the provision is to provide greater flexibility to respond to compelling circumstances,[16] and the text of the relevant provisions in cl 820.211(2)(d)(ii) do not contain any clear words that have the effect of confining that consideration to events which only existed at the time of the visa application.[17]
[14] Waensila v MIBP [2016] FCAFC 32.
[15] Waensila v MIBP [2016] FCAFC 32 per Robertson J at [22] and Griffiths J at [59], overruling the Federal Court decision in Boakye-Danquah v MIMIA (2002) 116 FCR 557 which held that ‘compelling reasons’ was limited to those arising out of the circumstances as at the time of visa application.
[16] Waensila v MIBP [2016] FCAFC 32 at [2], [18], [56].
[17] Waensila v MIBP [2016] FCAFC 32 at [2], [16], [58].

However, compelling reasons must exist at the time of decision. Future intentions are not relevant considerations in determining whether there are compelling reasons.[18]
[18] In Lan v MIBP [2018] FCCA 1170, the Court rejected an argument that an intended future pregnancy qualified as a compelling reason in the circumstances of that case.

47. During the hearing, the Tribunal discussed with the applicant his migration history, as outlined above, and the applicant agreed that he did not hold a substantive visa at the time of lodgement of the partner visa application. The Tribunal discussed with the applicant his reasons for remaining in Australia unlawfully. He stated that he was not aware of the cancellation of the student visa, and he did not know what to do. At a previous hearing, the applicant told the Tribunal that he changed educational bodies from the Meridan International School, where he studied bakery, to the Oxford College. He said that he did not receive the Notice of Intention to Consider Cancellation (‘NOICC’). He stated that, in 2009, he called the Department and advised them that he had transferred to the Oxford College. The Department asked him to attend the Department, but he said he was afraid and did not go to the Department.

The Tribunal is concerned about the applicant’s period of unlawfulness and did not find his reasons to be convincing or persuasive. The Tribunal is of the view that his conduct might indicate disregard for Australia’s migration laws, but the applicant’s unlawful status is not the only consideration for the Tribunal.
The applicant contends that there are grounds to waive the requirements of Schedule 3. The contended grounds include the genuine and continuing nature of the relationship, the sponsor’s mental and physical health, the hardship that would be caused by the separation, and the potential adverse financial consequences.
The evidence before the Tribunal is that the sponsor suffers from mental and physical health challenges, including schizophrenia, congenital hearing impairment, bipolar affective disorder, depression, and myocarditis.[19] The sponsor takes multiple medications,[20] and she gave evidence that the applicant assists her in organising when to take them, as she tends to forget.
[19] Health Summary Sheet by Dr Vasuthevan, printed on 16 September 2022.
[20] Ibid.
The Tribunal accepts the parties’ contention that the applicant has contributed to the household financially and that, in case of separation, there would be a significant degree of financial hardship.
The Tribunal accepts on the evidence that the sponsor suffers from physical and mental health challenges which could worsen in case of separation. The Tribunal acknowledges that the length of the relationship is not necessarily a compelling reason; however, as mentioned previously, it can be taken into consideration. The couple has been together for a substantial number of years and the Tribunal is satisfied that their relationship is genuine and continuing.
On balance, the Tribunal is satisfied that there are compelling circumstances in this case, including, but not limited to, the sponsor’s mental and physical health, the financial hardship that could result, and the adverse emotional consequences.
In conclusion, the Tribunal is satisfied that there are compelling reasons for not applying Schedule 3 criteria. Therefore, the Tribunal finds that the applicant meets cl 820.211(2)(d)(ii).
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
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; and
·cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations.
Antoinette Younes
Deputy President

ATTACHMENT B - 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).