1. The representative made submissions to the department and to the Tribunal claiming that there are compelling circumstances affecting the sponsor that justify the Tribunal approving the sponsorship. Broadly speaking, those circumstances relate to:
   1. the longstanding nature of the relationship between the applicant and the sponsor;
   2. the difficulties the sponsor would have if he were to relocate to the Philippines to maintain his relationship with the applicant, related to his work and his health;
   3. the sponsor's ties to Australia;
   4. the purpose of the legislation; and
   5. the period between sponsorships.
2. I have considered these circumstances individually and cumulatively, however, for the following reasons, on balance, I am not satisfied that they constitute 'compelling circumstances affecting the sponsor' to warrant approval of the sponsorship.

1. The representative Second Submissions provide that:

Karen and Andrew have known each other since they first met and formed their relationship in 2018, and have been married since June 2019 which is almost 6 years ago.

The Migration Regulations, and Procedures Advice Manual, define long-term partner relationship, in relation to an applicant for a visa, as a relationship between the applicant and another person, each as the spouse or defacto partner of the other, that has continued in any other case for not less than 3 years.

We are aware that the sponsorship provisions are "Time of Application", and that the applicants did not meet this timeframe at time of application, however PAM3 makes it clear that the list above is not exhaustive and the fact that the applicants remain today in a stable marriage which is to the national average gives this argument considerable weight.

1. I accept at face value that the applicant and the sponsor have been married and living together for almost six years. I also accept at face value the couple's oral evidence to the effect that they love each other, that they are committed to their relationship and that they see their relationship as long-term. I accept at face value that the applicant is the sponsor's 'sole source of family support [in Queensland], and that he depends on her emotionally on a daily basis', as claimed in the First Submissions.
2. While I have considered these matters, I do not find them to be sufficiently compelling. There is little to distinguish the couple's relationship from any other genuine and continuing relationship. I have also had regard to the decision of Nagaki v Minister for Immigration and Border Protection [2016] FCCA 1070, where, among other things, Jarratt J found:
   1. At [58], that the genuineness of a relationship 'in and of itself, could not constitute a compelling circumstance affecting a sponsor... Were it otherwise, every applicant who demonstrated that they were a spouse for the purposes of cl.820.211(2)(a) would fall within the reg. 1.20J(2) exception.'
   2. At [69] that, 'the definition of long-term partner relationship in reg.1.03 has no statutory relevance or application to whether there are compelling circumstances affecting the sponsor for the purposes of reg.1.20J(2).'

1. The representative's First Submissions relevantly provide that:

Mr Wilson is a 50 year old Australian Citizen. He is not a businessman, and he is not independently wealthy. He has lived his entire life in Australia, whereas Karen is from the Philippines.

The Philippines is a third-world country, and it is virtually impossible for someone without independent wealth or employment prospects with international corporations to enable him to live and earn a living in the Philippines. ... it would cause Mr Wilson extreme hardship if he was forced of visa-refusal of his spouse to relocate to the Philippines and to most-likely need live off Karen's income as a hairdresser.

Please note that the average hairdresser salary is P19,400.00 (AUD$536.00), which is difficult for a 50 year old Australian to adjust to...

Being forced by a visa-refusal to relocate to the Philippines and to try to exist there at a poverty level would be traumatic to him.

1. This submission is supplemented by the Second Submissions, which relevantly provide that:

Andrew has no skills in Tagalog or Visayan (the regional language in Karen's home town), and would have great difficulty in trying to live and to support himself in the long term if forced to relocate to the Philippines.

Andrew is a machinery operator. This is a poorly-paid position in the Philippines, and even if he was able to obtain employment it would force him into living in poverty by Australian standards.

1. The couple provided some evidence to the Tribunal regarding his present employment. Relevantly:
   1. The sponsor gave written evidence that he has been employed for 13 years as a heavy machine operator in the mining industry and that he is also a supervisor and manager. He gave written evidence to the effect that it would be difficult to be able to find similar work in the Philippines.
   2. The sponsor gave oral evidence to the effect that his income varies depending on his hours but that it may be between $1,000 - $2,000 per week. No corroborating evidence was provided to the Tribunal as to the sponsor's current salary, but I note that several pay advices from 2019 were submitted to the department which provided a gross weekly wage of approximately $2,000.
   3. The couple submitted a letter from the sponsor's employer verifying his employment and that he is a 'key employee within the organisation and extremely valued'.
2. No evidence was provided to the Tribunal regarding the availability of work and the associated salary for the sponsor in the Philippines, or the living expenses in the Philippines. I note that the delegate also commented on the lack of supporting evidence provided in the decision record, which provides:

I have considered your claim that your sponsor would be without employment prospects in the Philippines and would be reliant on your income as a Hairdresser. In the absence of evidence, I afford no weight to this claim and do not accept your claim as compassionate and compelling circumstances necessitating the waiver of Regulation 1.20J(2).

1. I accept that the sponsor is in long-standing employment and that he earns a reasonable salary in Australia. However, I do not consider these matters to be particularly remarkable. In the absence of specific evidence relating to the sponsor's employment prospects and the living expenses in the Philippines, I am not satisfied that any work-related difficulties the sponsor may face if he were to relocate to the Philippines constitute a 'compelling circumstance'.

Mr Wilson (Sponsor) is a survivor of cancer. He had a large fast growing squads cell carcinoma removed in April 2019 and requires regular skin checks due to the continued chance of recurrence.

Mr Wilson lost his mother to cancer in 2009, and his father is in a hospice also with cancer.

Mr Wilson also suffers from depression since a relationship breaks in 1994, and is subject to regular suicidal thoughts.

The Philippines does not have a socialised-medicine program to the equivalent of Australia's Medicare. If his cancer recurred, he would be need to seek treatment in the Philippines where quality healthcare is expensive. If they were living on a hairdressers salary, the treatment available to him would be of a very low standard.

Andrew is also 59 years of age, and this would make it even harder for him to adjust to this change of life at his age.

1. The couple gave written and oral evidence regarding the sponsor's health. They also submitted to the Tribunal a letter from the sponsor's general practitioner dated 18 August 2021 (which was also provided to the department).
2. I accept on the evidence before me that the sponsor received treatment for melanomas in or about 2019 and 2022, and that it has been recommended that he undergo six monthly skin checks. I have given this some weight.
3. The couple also gave evidence to the effect that the sponsor has suffered from anxiety, depression, and suicidal ideations and that he suffers from dermatitis. No corroborating evidence was provided.
4. I agree with the evidentiary concerns expressed by the delegate in the decision record, namely:

Whilst you have not provided any evidence to support your claims made of the Philippines health system, I accept at face value that your sponsor would incur costs associated with his medical care if treated in the Philippines than he would not otherwise incur if treated in Australia. You have not however, included medical estimates by registered Philippines health care workers to demonstrate the cost of managing your sponsor's condition. I also note, that as an Australian citizen, your sponsor would not be prevented from returning to Australia to receive any required treatment, including bi-annual check-ups, under the Medicare system. I therefore, do not accept your claim in respect of health care options and affordability as compassionate and compelling circumstances necessitating the waiver of Regulation 1.20J(2).

I have considered your claims that your sponsor suffers from depression and regular suicidal thoughts and relies upon your continued emotional support. I give no weight to this claim as you have not provided Psychologists reports confirming this diagnosis or evidence that your sponsor has been receiving ongoing treatment for this condition, which you claim began in 1994 following the breakdown of his relationship. I therefore, do not accept your claim as compassionate and compelling circumstances necessitating the waiver of Regulation 1.20J(2).

1. In the absence of corroborating evidence regarding the sponsor's mental health and his ability to receive reasonable treatment for skin cancers and dermatitis in the Philippines, I do not accept that such constitute 'compelling circumstance'. I also do not accept the sponsor's age to be a compelling circumstance.

1. The sponsor gave evidence to the effect that his parents are deceased, and that his sister and his four children live in Tasmania. The sponsor gave evidence to the effect that he does not have a good relationship with his sister, but that he maintains contact with his adult children. I accept these matters at face value, but do not consider that they constitute strong ties to Australia or 'compelling circumstances'.
2. The couple provided character statements from two friends and the sponsor's employer. The evidence was provided by way of signed statements only. No statutory declarations were provided and no supporting identification was provided. For this reason, I have given the documents less weight.
3. I accept that the sponsor's long standing employment constitutes a tie to Australia. However, I do not consider this to be a 'compelling circumstance' in and of itself.
4. The other character witnesses have only known the couple for two years. They speak to the genuineness of the relationship and the detriment to the sponsor's health if the applicant were to leave Australia. I do not consider that this evidence demonstrates strong ties to Australia. I do not accept the witnesses' views as to the sponsor's health because they are not qualified to provide such opinions.
5. The sponsor provided written and oral evidence to the effect that the couple have been approved to be foster carers for children in need, which they could not do in the Philippines because of their relationship. No corroborating evidence was submitted to support this claim and accordingly, I do not accept it as a 'compelling circumstance'.

1. I do not accept the representative's submission in the Second Submissions that:

The issue of "serial sponsorship" was tied very closely to concerns about family violence and repeat offenders being able to sponsor new victims, thus abusing a previously unlimited migration program. No one can argue about the importance to Australian society in being concerned for the safety of migrant women, and the application of this Regulation in helping to stem the incidence of family violence.

In this case, Mr Wilson has no history of family violence against his previous spouses. It can be argued that to deny him the right to remain in Australia with his wife of 6 years will not do anything to achieve what the original lawmakers had in mind when drafting this legislation in the first place.

1. There are other provisions of the Regulations that restrict sponsorship where the sponsor has been convicted for domestic violence related offences, for example, reg 1.20KC. I do not find the fact (which I accept at face value) that the sponsor has no history of family violence to be a 'compelling circumstance'.

1. The representative's Second Submissions provide:

[The sponsor] is the victim of making some poor choices over the course of his lifetime, and has two previous failed relationships who happen to have been migrating partners who availed of Australia's partner visa program and thus let Andrew be caught by the provisions of Regulation 1.20J.

The first of these Partner Visa applications was lodged in 2006 and the second in 2012.

It is reasonable to consider this strongly because the sponsorships took place 19 and 7 years before his sponsorship application with Karen.

Mr Wilson does not fit anybody's mould as a "serial sponsor".

1. The sponsor gave evidence at the hearing to the effect that his relationship with his ex-de facto partner ended after she obtained Australian citizenship as she no longer needed the sponsor, and that his relationship with his second wife ended due to incompatibility. He also gave evidence to the effect that he had made mistakes with his past relationships.
2. The department's Procedural Manual, which is not binding on the Tribunal, provides the following in relation to 'innocent sponsors':

There have recently been a number of claims relating to so called 'innocent sponsors'. These sponsors claim that their intentions towards the original relationship were genuine, that they were blameless in the failure of the relationship and that because of this, the waiver should be exercised. In some of these cases, the person they sponsored/nominated has left Australia and no immigration advantage was gained. The sponsors claim that they would be unreasonably disadvantaged if the waiver was not exercised as their new relationship is clearly genuine.

It is open to decision makers to decide whether this situation would meet the criteria of compelling circumstances. However, this would depend on the individual circumstances of each case such as whether it is possible to establish the bona fides of the original relationship or whether the first sponsorship was 'careless' (sponsored with the expectation that if things didn't work out, they would be free to try again). Although the first relationship may not necessarily be bogus, this scenario may still represent a misuse of the migration provisions.

1. Overall, there is insufficient evidence before the Tribunal to assess the circumstances of, and the veracity of, the sponsor's past relationships. While I acknowledge that the 'sponsorships took place 19 and 7 years before his sponsorship application with Karen', it is also relevant to note that the sponsor appears to have met the applicant shortly after his relationship with his second wife ended. The couple met on an offshore dating website while the sponsor was still married to his second wife, and married approximately one month after their divorce. In the absence of adequate credible evidence, I do not accept that the circumstances of the sponsor's previous relationships or the time that passed between sponsorships to constitute a 'compelling circumstance'.

1. I have considered the claims separately and cumulatively and am not satisfied that they constitute compelling circumstances affecting the sponsor. Accordingly, I have decided not to approve the sponsorship under reg 1.20J(2).
2. For these reasons, the requirements of cl 820.221(4) are not met and the applicant does not satisfy the criteria for the grant of the visa.

1. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Representative for the Applicant: Mr Jeffrey Peter Harvie (MARN: 0959797)