WELDEMARIAM (MIGRATION) - [2024] ARTA 112

WELDEMARIAM (MIGRATION) [2024] ARTA 112 (23 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Tekle Hailemichael Weldemariam
Visa Applicant:  Mrs Tsige Birhane Reda
Respondent:  Minister for Home Affairs
Tribunal Number:  2114945

Tribunal:General Member T. Quinn
Place:Melbourne
Date: 23 October 2024
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 309 (Partner) visa:
· Clause 309.222(1) of Schedule 2 to the Regulations

Statement made on 23 October 2024 at 4:35pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – subclass 309 – sponsorship limitation – there is a child of the relationship and another child expected – there are compelling circumstances that affect the interests of the sponsor – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.20J, Schedule 2, cls 300.213, 309.222
STATEMENT OF REASONS
APPLICATION FOR REVIEW

On 9 January 2019, the visa applicant (‘the applicant’ or ‘Ms Reda’) applied for a Partner visa[1] (‘the visa’) based on her marriage to the review applicant, Mr Tekle Hailemichael Weldemariam (‘the sponsor’ or ‘Mr Weldemariam’).[2]
[1]Specifically, a Partner (Provisional) (Class UF)(subclass 309) visa and a Partner (Migrant) (Class BC)(Subclass 100) visa.
[2]Pursuant to section 65 of the Migration Act 1958 (‘the Act’). At the time of the applicant’s application, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of a Subclass 309 visa are set out in Part 309 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.
On 20 September 2021, a delegate of the Minister for Immigration (‘the delegate’) refused the applicant’s visa application, as the sponsor had exceeded the limit on the number of people that he could sponsor in a lifetime (‘the delegate’s decision’).[3]
[3] See clause 309.222 of Schedule 2 to the Regulations and Regulation 1.20J of the Regulations.
On 25 October 2021, the sponsor applied for a review of the delegate’s decision with this Tribunal.[4]
[4] Pursuant to sections 338(5) and 347(2)(b) of the Act.
The review applicant was represented in relation to the review.
The matter was listed for hearing on 17 September 2024. However, I have considered all of the information and evidence before me and find that a favourable decision may be made on the basis of this material without proceeding to a hearing.[5] The case is remitted for reconsideration.
[5] Pursuant to section 106(3) of the Administrative Review Tribunal Act 2024.
Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in my reasons as set out below. The reasons incorporate reference only to that information that I have found to be fundamental or materially significant to the determination of the issues in the case.[6]
[6]In this regard, please see Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (24 February 2020) at [82] and [96].
STATUTORY AND LEGAL FRAMEWORK
Clause 300.213 requires that, at the time of application, the applicant is sponsored by the sponsor and that the sponsor has turned 18.
The issue in this case is whether the applicant meets clause 300.222(1) which requires that, at the time of decision, the sponsorship of the visa applicant under clause 300.213 has been approved by the Minister and is still in force.
Approval of sponsorship is subject of a number of limitations contained in the Regulations, including a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship.[7] Under this regulation, a sponsor is limited to a total, in a lifetime, of two approved sponsorships or nominations that lead to a grant of a partner visa and five years must have passed since the date of making the application for the previous partner visa.[8]
[7]Regulation 1.20J(1) of the Regulations.
[8]Regulation 1.20J(1) of the Regulations.
Despite the aforementioned provisions, Regulation 1.20J(2) provides that a Minister may approve the sponsor of an application for a visa if satisfied there are compelling circumstances affecting the sponsor.
The expression ‘compelling reasons’ is not defined in the Act or Regulations. The ordinary dictionary meaning is ‘brought about by moral necessity’. The reasons advanced
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.[9]
[9]See MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478; (2012) 127 ALD 510 at [10], Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 at [24] and Singh v Minister for Home Affairs [2020] FCAFC 7 at [27].
Departmental policy provides the following examples of compelling circumstances affecting the interests of the sponsor:
·the previous partner has died;
·the previous partner has abandoned the sponsor, and there are children dependent on the sponsor requiring care and support;
·the new relationship is long-standing; or
·there are dependent children of the new relationship.[10]
[10]Policy - Migration Regulations - Div 1.4B - Limitation on certain sponsorships under Division 1.4 – Sponsorship Limitations – Spouse, Partner, Prospective Marriage and Interdependency Visas - Assessing reg 1.20J at [7.2] (re-issue date: 18/11/2016). The examples mirror those provided in the Explanatory Statement to SR 1996 No 211.
The policy also identifies the following as relevant when considering waiving the bar on repeat sponsorship:
·the nature of the hardship/detriment that would be suffered (by the sponsor) if the sponsorship were not approved; and
·the extent and importance of the ties the sponsor has to Australia, and the consequent hardship/detriment that would be suffered if the sponsorship were not approved and the sponsor were to feel compelled to leave Australia to maintain their relationship with the applicant.[11]
[11]Policy - Migration Regulations - Div 1.4B - Limitation on certain sponsorships under Division 1.4 – Sponsorship Limitations – Spouse, Partner, Prospective Marriage and Interdependency Visas - Assessing reg 1.20J at [7.2] (re-issue date: 18/11/2016).
These examples are not exhaustive. In forming an opinion about these matters, regard must be had to all of the circumstances of each case, taking into account that the purpose of the sponsorship limitation is to prevent abuse of the partner migration provisions.
I have carefully considered the material and evidence before me. I recognise that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, independently of any conclusions reached by the delegate.
Decision makers are not required to uncritically accept any or all of the claims made by the applicant and sponsor, and I have not done so. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepts or rejects individual pieces of evidence.[12]
CONSIDERATION OF CLAIMS AND EVIDENCE
[12]Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67].
Sponsorship
The visa applicant is the spouse of the sponsor, who has been an Australian citizen since 11 July 1994. Based on the information before me I am satisfied that the sponsor is an Australian citizen.[13] The applicant and sponsor (‘the applicants’) have filed a copy of their Marriage Certificate with the Department which indicates they were married on 22 March 2016 in Ethiopia.[14] On the evidence, I am satisfied the sponsor sponsored the applicant at the time of application on 9 January 2019 and that he was over the age of 18 years (the evidence is that he was born in 1974) at the time of application. I am satisfied clause 300.213 is met.
[13]See Department file.
[14]See Marriage Certificate in the Department file.
Sponsorship limitations
The evidence before me is that the sponsor h as previously sponsored two other people for partner visas – one was granted in 1996 and one was granted in 2006. There were no children of either marriage. The applicant has filed divorce orders in relation to both marriages.
This evidence means that the applicant does not meet, prima facie, Regulation 1.20J(1).
Compelling circumstances
Regulation 1.20J(2) provides that despite the provisions of Regulation 1.20J(1), a Minister may approve the sponsor of an application for a visa if satisfied there are compelling circumstances affecting the sponsor.
The applicant and sponsor have had a child, Arsema Tekle, Hailemichael, on 8 December 2016 (‘Arsema’). The birth of Arsema is consistent with the sponsor’s movement records and return trip to Ethiopia in terms of timing of conception. The applicant and the sponsor are listed as parents on Arsema’s birth certificate.[15]
[15]See birth certificate in the Tribunal file.
Arsema is an Australian citizen by descent – a copy of her citizenship certificate dated 20 August 2018 has been filed. However, due to the visa situation of her parents Arsema is unable to reside in this country and still have the care of the applicant.
A statement from the sponsor’s church has been filed, dated 8 September 2024, attesting to the significant role the sponsor plays in the congregation and the risks he would face if forced to return to his home country in order to raise his children as a family unit in the same house together with his wife. Similar statements have been filed by friends of the sponsor.
An employment reference dated 6 September 2024 has been filed which states the sponsor has worked for his current employer for over a year and his departure would be a significant loss to the organisation.
The applicant has also provided evidence of: money transfers and gifts; superannuation nomination; daily calls; photos; and five return trips to Ethiopia by the sponsor to visit his wife and child. I consider this evidence is suggestive of a genuine spousal relationship.
Evidence has also been provided that the couple are now expecting their second child, with the applicant being currently pregnant. This evidence is also supported by the dates of the sponsor’s travel to Ethiopia in terms of the timing of conception.
I give considerable weight to the evidence that, at the time of this decision, there is a child of the relationship and another child expected.
I refer to and repeat paragraphs 10-15 above.
Conclusions
It has been held that the circumstances in these types of cases must force or drive the decision-maker irresistibly to be satisfied that special consideration should be given to granting the particular application.[16] I consider that the circumstances of this case force or drive me irresistibly to be satisfied that special consideration should be given to this case and refer to the provisions set out above regarding situations that may constitute compelling circumstances (see paragraphs 10-15 above).
[16]Plaintiff M64/2015 v MIBP [2015] HCA 50.
Having considered the applicant’s case, I am satisfied that, at the time of my decision, there are compelling circumstances that affect the interests of the sponsor such that the sponsor’s sponsorship of the applicant ought to be approved, despite him exceeding the limit of sponsorships set out in Regulation 1.20J(1).
On the evidence before me, I consider the requirements of clause 309.222(1) are met. Therefore, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.
DECISION
The Tribunal sets aside the decision under review and remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 309 (Partner) visa: clause 309.222(1) of Schedule 2 to the Regulations
T. Quinn
General Member

Date(s) of hearing: 17 September 2024- cancelled.
Representative for the Applicant: Ms Stephanie Leigh Camilleri