1710743 (Migration)

1710743 (Migration) [2018] AATA 5752 (11 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1710743
MEMBER:Hugh Sanderson
DATE:11 December 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 11 December 2018 at 2:41pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – no substantive visa at time of application – no compelling reasons for not applying Schedule 3 criteria – lack of evidence – credibility issues – no risk of persecution if returned to home country – medical condition – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65, 359AA
Migration Regulations 1994, Schedule 2, cl 820.211, Schedule 3, criteria 3001, 3003, 3004

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration on 5 May 2017 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 23 January 2017 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d) because the delegate found that the applicant did not hold a substantive visa at the time of the application and did not meet criterion 3001 of Schedule 3 to the Regulations. Further, the delegate was not satisfied there were compelling reasons for not applying those criteria.
Background
The applicant is a citizen of Azerbaijan and is currently [age]. He was previously married and divorced his wife in 2014. There are two children from that marriage: [name], currently [age] and [name], currently [age]. His mother, [siblings] and his two children continue to live in Azerbaijan.
The applicant first arrived in Australia [in] December 2014 holding a [temporary] visa, which expired on 1 February 2015. He applied for a Protection visa on 22 January 2015. He failed to attend an interview with an officer from the Department of Immigration assessing that application. The Protection visa application was refused by the Department on 18 July 2016. The applicant remained in Australia after that as an unlawful noncitizen.
The applicant applied for and was granted a Bridging visa on 10 November 2016 on condition that he would be making arrangements to depart Australia. He also made an application for Ministerial intervention which was later refused. A further Bridging visa was granted to him on departure grounds on 24 November 2016. On 8 December 2016 the applicant was located by officers from the Department working without permission and his Bridging visa was cancelled. On 11 December 2016 the Tribunal (differently constituted) set aside the cancellation of the applicant’s Bridging visa. The applicant then applied for a further Bridging visa, however, this was refused by the Department and that decision was set aside by the Tribunal (differently constituted) on 9 January 2017.
The sponsor of the applicant is [Ms A]. She was born in the former USSR and is currently [age]. She is an Australian citizen. She was previously married and divorced her husband in 2013. There is a child from that relationship, [Ms B], who was currently [age].
The parties claimed that they first met each other in January 2016. They claim that a relationship developed after that time and they intended to marry each other. It was stated they could not live together at that time due to religious reasons. It was claimed they planned to marry and then to live together. They claim to have commenced a de facto relationship [in] 2016. The parties applied to the NSW Registry of Births Deaths and Marriages to have their de facto relationship registered [in] January 2017.
It was noted by the Department that the applicant did not hold a substantive visa at the time of the application and did not appear to meet the Schedule 3 criteria. The applicant was invited to provide compelling reasons for not applying those criteria. Submissions were made in response to this from the applicant’s agent.
The delegate who considered the application noted the applicant did not have a substantive visa at the time of the application and did not meet criterion 3001 of the Schedule 3 criteria. The following issues were noted when considering whether there were any compelling reasons for not applying those criteria:
·Only limited information was provided which would indicate that the parties were in a genuine relationship or that they had significantly combined their lives since August 2016 as claimed;
·Although the applicant claimed he would suffer from mental and physical health issues as a result of trauma experienced in Azerbaijan and from the period he was in the detention centre, there was no evidence to substantiate these claims;
·The Department had already assessed his Protection visa application claims which had been found to be without merit;
·The claims that the sponsor would suffer from a lack of emotional and physical support if she were separated from the applicant were not substantiated in any way;
·Claims that the applicant had been incorrectly notified by the Department during his assessment of the Protection visa application were not substantiated and indicated he was merely making these claims to prolong his time in Australia;
·The applicant had been located working in Australia without any right to do so; and
·The applicant has manipulated his circumstances to remain in Australia without any right to do so.
Taking all these matters into account, the delegate was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria. Accordingly, the delegate found the applicant did not meet the criteria in cl.820.211(2)(d) and refused the application.
Information to the Tribunal
The applicant provided further information to the Tribunal including the following:
·Report from [a], psychologist, dated 5 May 2017;
·Letter from [a doctor], dated 11 October 2018;
·Photos of the parties together with families and friends;
·Information as to the care of the sponsor’s mother in Russia and evidence of the sponsor sending money to her family in Russia;
·The bank accounts of the sponsor and the joint account of the parties;
·Various bills in the sponsor’s name;
·Statements in support of the application from friends and relatives;
·Photos of the applicant in army uniform (provided after the hearing);
·Certificate issued to the applicant from [an agency] with the provided translation stating that the ‘Holder of this Certificate is entitled to all the rights and privileges of [illegible] veterans in accordance with the laws of Azerbaijan Republic’ dated 1997 (provided after the hearing); and
·Submissions by the applicant’s agent.
In the submissions from the agent, two links were provided in respect of human rights abuse in Azerbaijan. These were provided by Human Rights Watch and Amnesty International. It was noted by Human Rights Watch that ‘the Azerbaijani government continues to wage a vicious crackdown on critics and dissenting voices. The space for independent activism, critical journalism and opposition political activity has been virtually extinguished by the arrests and convictions’. The report from Amnesty International found that the Azerbaijani government had arbitrarily arrested and detained independent journalists and bloggers. Comments were also made about the arrest of LGBTI individuals and political activists.
The applicant appeared before the Tribunal on 5 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, her daughter and [Mr B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Azerbaijani and English languages. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.
The Tribunal commenced the hearing by explaining to the applicant process under s.359AA of the Act. It explained to the applicant that it would be putting to him information which would be the reason, or a part of the reason, for affirming the decision under review. It would explain why this information was relevant and then invite the applicant to comment on or respond to the information. If he required more time to comment on or respond to the information he could request an adjournment.
Evidence of the applicant
The applicant said that he was currently living with the sponsor in her home. Before that he was living by himself in rented accommodation in [Suburb 1]. He said that he was working with a [specific] company. He said that he had been employed by them for about three years, starting soon after he arrived in Australia.
The applicant said the sponsor was currently working as an [Occupation 1] in a [location]. He said that she worked from Monday to Friday, leaving home at 7:00am and returning home at between 5:00pm and 6:00pm. He said the sponsor doesn’t like her work because it is stressful.
The applicant said that he and the sponsor have not got married yet because they are planning to throw a big wedding for friends. He said that he comes from a Muslim country but he does not have any religion himself. He said the sponsor was Christian but does not go to church. He said that when he stated in his application that he and the sponsor had lived apart on a temporary basis due to religious reasons, this was a way to express his own moral feelings as to why they had not started living together.
The applicant provided details of his immediate family in Azerbaijan. This included his mother, [and siblings]. He provided details of their work. He said that apart from lack of money they had no problems in Azerbaijan. He said his mother lives in a home that he owns and he also owns a block of land in Azerbaijan. He said that his two [children] attend university in [Country 1] but returned to Azerbaijan to live with his mother during the holidays.
The applicant said that before he came to Australia he was self-employed [in a certain industry]. He said that he had been successful, but then not so successful when the authorities did not allow him to work.
The applicant said that he did not have any continuing contact with his former wife. He said that he spoke to her for a short time to arrange to get the divorce certificate in 2017. The applicant gave a confused explanation as to his divorce from his former wife. He first stated that he was divorced in 2009 but did not get a copy of the certificate. He said that in 2009 he and his wife separated.
The Tribunal noted that the divorce certificate provided by the applicant to the Department stated that he was divorced in 2017 and did not refer to any earlier date. The applicant said that this was when he applied for the divorce certificate.
The applicant said that his Azerbaijan passport is a genuine passport issued by the authorities in Azerbaijan. He said that he had been using the passport for about 10 years. He said that he had used that passport to travel overseas to [Country 1] and [Country 2].
The Tribunal asked the applicant about his consultation with the psychologist who provided a report to the Tribunal. The applicant said that he did not know the name of the psychologist, only that he was male. He said that he visited the psychologist on two or three occasions. He then said that he could not remember how often he saw him. He thought he saw him on two occasions, but then said that he may have only seen him once and gone on another occasion to register with him. He said that he could not remember how often he saw him. He said that since the report was done he has not seen him again or sought any further treatment from any psychologist.
The applicant said he has [a medical condition]. He said that he was diagnosed with [the condition] in 2003 or 2004 and that he treated himself by adjusting his diet. He said that he does not take any medication for his [condition]. He said that his other medical problems is that he is constantly having problems sleeping and having nightmares due to what happened to him. He claimed that he had been seeing his general practitioner in relation to this.
The Tribunal referred to the letter dated 11 October 2018 from [his] general practitioner, who referred to his being diagnosed with post-traumatic stress disorder (PTSD) but which stated that: ‘He is very strong man, had never asked for medical help for his PTSD symptoms’. It was claimed in the letter that he had presented complaining of flashbacks and nightmares. This Tribunal noted that the report from the psychologist was only obtained at the time the Department was considering whether there were any compelling reasons for not applying the Schedule 3 criteria and the applicant had only gone to see his general practitioner for this report only after the Tribunal had invited him to attend the hearing. This indicated that the applicant was not suffering from any ongoing psychological difficulties and called into question the credibility of the claims he was making.
The applicant said that he could not remember how often he had seen the psychologist and the fact that he had stayed away from his general practitioner showed that he was emotionally strong.
The applicant said that the sponsor becomes distressed because of her work. He said that he believed she might have gone to see their general practitioner for the stress, but could not remember. He said that she was not on any medication because he does not approve of medication, but was not sure what medication she did take.
The applicant provided details of how he obtained his visa to enter Australia. He said that he paid people in Azerbaijan to get the visa. He said that he was told that his claims would be that he was to travel to Australia to make a film, but he had no knowledge of how to make a film or anything about filmmaking. He said that he travelled with other [people]. He said that they had also applied for protection in Australia. He said that he travelled with no one else. He said that he only met [Mr B] in Australia and did not know him before that.
The Tribunal referred to the process under s.359AA of the Act mentioned above. The Tribunal referred to the applicant’s Protection visa application file. This referred to his being granted a visa to enter Australia on the basis that he was with a group of six other people who were claiming to be making a film for Azerbaijan television. That arrangement was based on an invitation to make the film in Australia by [Mr B]. This was relevant as it indicated the applicant was willing to provide false information to the Department and also indicated that [Mr B] was willing to facilitate the entry of people for no valid reason.
The applicant said that he only knew [Mr B] and did not have any knowledge of him before he arrived in Australia. He said that he simply paid somebody in Azerbaijan to get the visa and he never did any filming or travelled with any other people apart from the two other people stated above.
The applicant said that when the Azerbaijan government fell in 1995 that he was put in prison for [a number of] years. He said that he was released in 2001, but was not sure. He provided vague and conflicting information as to what problems with the authorities he had had since then. He said that if anything happened they could grab you and put you in jail. He claimed to have been put in jail after he was released in 2001, or possibly 2003, but could not provide details.
The Tribunal referred to the process under s.359AA of the Act. The Tribunal referred to the applicant’s Protection visa application which set out the reasons why he was claiming to require protection. In that application he did not state that he had been arrested again since 2003 although he had made claims that the police would kill him. The inconsistent information he was providing today indicated the claims that he was making were not plausible.
The applicant said that when he was arrested and placed in [immigration detention] he set out all his claims. He said that when he applied for the Protection visa he did not know what was said as he did not speak English.
Evidence of the sponsor
The sponsor gave evidence in support of the application. She said that when she and her former husband separated in 2010 they had a property settlement which allowed her to buy out her former husband’s interest in the home. She borrowed [an amount of money] and has been repaying that debt by herself since 2010. She believed that the total debt had only been reduced to about [a certain amount].
The sponsor confirmed her work. She said that she had been employed in [Occupation 1] for about 24 years. She said that she was a member of [a] Superannuation scheme, but did not know the details of that scheme or the benefits she would be entitled to. She said that the applicant had been working in the same place since she first met him.
The sponsor gave details of the applicant’s family in Azerbaijan. She said that they had problems with money, getting work and corruption. She said that the applicant’s mother lives in a home owned by the applicant with the applicant’s [siblings].
The sponsor said that before coming to Australia the applicant worked as [an occupation]. She said that he regularly travelled to [Country 3] as part of his job. She was not sure of the other places he had travelled to. She was not sure how the applicant obtained the divorce certificate from his former wife, believing that the authorities had lost the documents which was why the divorce certificate was dated 2017.
The sponsor said the applicant suffered from [a medical condition], however, this was pretty well controlled with just diet. She said that he does not need any medication. She said that he has not needed to see a doctor apart from when he gets headaches because of the work he does. She said that she suffers from [medical] problems and takes medication for this, but does not have any other problems.
The sponsor said that the applicant went to the psychologist on only one occasion. She said the applicant did not receive any further treatment for any psychological problems and has never taken any medication. She said that in their culture they do not talk about psychological problems. She said that he complained to her, but no one else. She said that she never suggested that he go and see a psychologist or get any other treatment.
The sponsor provided details of her other family members who live in Russia. She provided details of her daughter’s work.
The sponsor said that her previous marriage was not good and she suffered family violence. She said that now that she was with the applicant she felt protected by him and she was afraid of what would happen to him if he returned to Azerbaijan.
Evidence of other witnesses
The sponsor’s daughter provided details of her work. She said that the compelling reason for not applying the Schedule 3 criteria was that the applicant had been a political prisoner in Azerbaijan. She said that the applicant now supports her mother financially and they are in a genuine relationship.
[Mr B] gave evidence in support of the application. He said that he had never sponsored anybody to come to Australia. When the information that he was the person who had invited the applicant and other people to Australia on the basis of producing a television program was put to him, he claimed that he did not know what people had said in that application. He was aware of the television program and had provided his name to support the program being made. He said that as he was actively involved in the Azerbaijani community in Australia and he was often requested to support activities within that community. He denied any knowledge that the process by which the applicant entered Australia was false or having any knowledge of the applicant before he arrived in Australia.

[Mr B] said that he travels back to Azerbaijan every two or four years. He said that he has no problems in dealing with the Azerbaijani government, though he said that you could not mention political issues and there was corruption at the highest level.
[Mr B] said that both the applicant and the sponsor were active within the Azerbaijani community in Australia and that they had lots of people supporting them in Australia.
Further evidence of the applicant
The Tribunal referred to the process under s.359AA of the Act set out above. The Tribunal referred to the information provided by the sponsor that he had regularly travelled to [Country 3] while living in Azerbaijan. This was relevant as it indicated that the applicant had departed Azerbaijan regularly and had never applied for protection in [Country 3], indicating that he did not have any reason why he would not be able to return to Azerbaijan to file an offshore Partner visa application.
The applicant said the sponsor was wrong when she described his job. He said that what he would do would be to travel to [Country 3] and [details deleted]. He said that he always returned to Azerbaijan because that’s where his family was. He said that he could not apply for protection in [Country 3] because there would be no guarantee that people from Azerbaijan would not reach him in [Country 3] because people in Azerbaijan had people in [Country 3].
The Tribunal referred to the evidence of the sponsor which was that they only went to see the psychologist on one occasion. This undermined claims that the applicant made that he had seen the psychologist on two or three occasions and indicated that he was exaggerating any treatment he received from a psychological condition that he claimed to suffer from. This would undermine any claim that any psychological condition would provide a compelling reason not to apply the Schedule 3 criteria.
The applicant responded by saying that he can become quite forgetful and he can make mistakes, and maybe thought that he had gone to see him more often.
The Tribunal referred to the information provided by [Mr B] which was that he and the sponsor have a lot of support from the Azerbaijani community. This indicated that the sponsor would be able to receive any emotional support from that community if the applicant were required to file an offshore visa application. This indicated that the fact that the sponsor would be separated from the applicant would not provide a compelling reason for waving the Schedule 3 criteria.
The applicant said that in Australia everybody was busy working. He said that nobody could provide the support he provides to the sponsor, because she has so many problems, and he did not want to go back to Azerbaijan because he will be persecuted there.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant satisfies the Schedule 3 criteria and, if he does not, if there are compelling reasons for not applying those criteria.
Does the applicant meet Schedule 3 criteria, or should those criteria be waived?
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).
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.
Criterion 3001
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). In the circumstances of the applicant, the relevant day is the last day when the applicant held a substantive visa.
The applicant’s last substantive visa ceased on 1 February 2015. This is almost two years prior to the current application being filed.
As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.
Compelling reasons
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.
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 applicant’s last substantive visa was the [temporary] visa which expired on 1 February 2015. The applicant acknowledged that the claims he made in order to obtain that visa were false and his intention upon arrival in Australia was to apply for a Protection visa. The applicant claims that he failed to receive notice of the Department’s invitation to an interview and the Department’s decision to refuse his application, which was the reason why the application was refused and he was not able to file an application for a review in stipulated time. It was for this reason that at the time of the application he did not hold a substantive visa.
The Tribunal does not accept that the reason for the applicant holding a substantive visa provides a compelling reason for not applying the Schedule 3 criteria. There is nothing to indicate that the Department’s notices to the applicant were not properly sent to him or that there was any jurisdictional error in the manner the Department assessed the Protection visa application and notify the applicant of that decision.
For the reasons set out below, the Tribunal does not accept the claims made by the applicant that he would face any persecution or any harm if he were required to return to Azerbaijan. There is no information before the Tribunal that the Department did not correctly refuse the Protection visa application based on the information the applicant provided in support of that application. The Department refused the Protection visa application in July 2016. The current application was not filed until 23 January 2017, six months after the refusal of that application. The parties only claimed to have commenced their relationship in August 2016, after the Department’s decision. The Tribunal is not satisfied that any of the circumstances provide a compelling reason for not applying the Schedule 3 criteria.
The applicant claims that the circumstances surrounding his application for a Protection visa are still in existence and this provides a compelling reason for not applying the Schedule 3 criteria. The Tribunal has considered all the claims made by the applicant as to why he left Azerbaijan and why he cannot return. He claims that he worked for [an organisation] and with the change of government in 1995 he was arrested and placed in jail for [a number of] years. He claims that he faces continuing persecution from the authorities in Azerbaijan. The Tribunal does not accept these claims.
The applicant has provided little information which would indicate that he faces any persecution or any threat of harm against him from the authorities or anyone else in Azerbaijan. Although claiming to have been imprisoned for [a number of] years after the fall of the previous government in 1995, he has not provided any independent information to the Tribunal which would support this claim. The claims made by the applicant to the Tribunal were vague and inconsistent. He was unable to say when he was released from prison. He has made claims that he was released from prison in either in 2001 or 2003. Although claiming to have been arrested and imprisoned since then, he provided no details of this.
The applicant provided photos of him in military uniform and [details deleted]. He provided a card confirming that he was a veteran. The Tribunal accepts that the applicant was at some point employed in [Azerbaijan]. The Tribunal does not accept, however, that the applicant has in the past faced persecution because of his participation in such an organisation or that he faces any continuing threat or persecution.
The certificate provided by the applicant confirms that he was a veteran in a military organisation and that he ‘is entitled to all the rights and privileges of [illegible] veterans in accordance with the laws of Azerbaijan Republic’. The fact that he was issued such a certificate does not indicate that he was facing persecution at the time that he was issued a certificate, but instead was entitled to benefits from the government. The certificate is stated to have been issued in 1997. This is after the fall of the regime he claims he was working for and was issued to him while he claims that he was in prison. The Tribunal does not accept that if the applicant was issued this certificate in 1997 that the government would have issued the certificate to the applicant granting him certain rights and privileges while he was in prison.
Even accepting that the applicant was imprisoned for [a number of] years after 1995, there is no credible information that would indicate the applicant has since then been targeted for any reason by the government or faces persecution for any reason. The claims made by the applicant are remote and do not indicate he faces any current persecution or harm in Azerbaijan.
While living in Azerbaijan the applicant has travelled overseas on a number of occasions. He stated that his job was travelling to [Country 3] [details deleted]. The Tribunal does not accept that if the applicant faced any persecution or any difficulties living in Azerbaijan that he would not have sought asylum in [Country 3]. That he regularly returned to Azerbaijan after spending time in [Country 3] indicates that he does not face any threat of harm.
The Tribunal does not accept the applicant’s explanation that he did not apply for asylum in [Country 3] because the Azerbaijani government would be able to ‘get him’ there. There is no evidence which would support such a claim and there is no explanation as to why, if the Azerbaijani government was able to locate and get the applicant in [Country 3], they would not have similar resources to be able to get him in Australia. The claim is implausible and unsubstantiated in any way and the Tribunal does not accept it.
The Tribunal has taken into account the reports from Human Rights Watch and Amnesty International provided by the applicant. These reports centre on allegations that the Azerbaijani government continues to crackdown on critics and dissenting voices, particularly noting bloggers and journalists. The applicant has not made any claim that he has made any criticism of the government. His only claim is that he was previously a member of a special operations police group and he faces persecution because of this. He does not make claim and there is no evidence to support any such claim that he has been involved in journalism or any criticism of the government. There is no information that the applicant has any involvement in any of the other groups referred to in the reports by Human Rights Watch and Amnesty International.
The applicant has been issued with a valid Azerbaijani passport. He has not claimed that he had any difficulty obtaining this passport and has used it regularly prior to his departure to come to Australia. He has never had any difficulty in departing Azerbaijan using this passport. This indicates that the applicant is not a person of interest to the Azerbaijani government and would not face any persecution in Azerbaijan.
Apart from facing some financial stress, there is no information that the applicant’s family in Azerbaijan face any difficulties or persecution from the Azerbaijani authorities arising either from their own actions or the actions of the applicant. The applicant owns a home in which he previously lived with his mother together with a block of land. If the applicant were required to return to Azerbaijan he would be able to live in the home he owns with his mother. He has previously been able to earn an income in Azerbaijan and there is no information which would indicate that he would not be able to continue to support himself by working.
The Tribunal has considered all the circumstances of the applicant if he were required to return to live in Azerbaijan while any offshore Partner visa application is processed. The Tribunal is not satisfied that any of the circumstances the applicant may encounter in Azerbaijan provide a compelling reason for not applying the Schedule 3 criteria. This includes taking into account the claims the applicant has made that he faces persecution in Azerbaijan, where he would be able to live, the income he would be able to earn and the support he would receive from his family, who continue to live in Azerbaijan.
The applicant has claimed that he suffers from PTSD. He has provided a report from [a psychologist] and his general practitioner to support this claim.
The report from [the psychologist] was obtained after one interview. [The psychologist] appears to accept uncritically the claims made by the applicant to establish his diagnosis of the applicant suffering from chronic and severe PTSD. He concludes that the applicant ‘is in need of urgent and ongoing psychological treatment’. He estimated that the applicant would require individual therapy spanning at least 18 months. After this report was issued, the applicant did not see [the psychologist] and has not obtained any further treatment of any claimed PTSD or any other psychological condition. The report was issued on 5 May 2017, the day the Department issued their decision refusing the application, and appears to have been obtained for the sole purpose of supporting the applicant’s Partner visa application and not for any therapeutic reason.
The report from the applicant’s general practitioner notes that although treating the applicant for the last 24 months he had ‘never asked for medical help for his PTSD symptoms’. The report stated that he presented complaining that he was struggling with flashbacks and nightmares. This report is dated 11 October 2018, a month after the Tribunal had invited the applicant to attend a hearing in respect of his application. The applicant’s doctor uncritically accepts the claims made by the applicant and although stating that the doctor ‘will look after his progress, will help him with treatment, counselling and support this lovely couple’, provides no information as to any counselling or any other treatment the applicant requires and will be given or has been provided.
As set out above, the Tribunal does not accept the claims made that the applicant suffered persecution in Azerbaijan. The claims made by the applicant as to being traumatised while in immigration detention is not supported by any corroborating independent evidence. Since arriving in Australia, the applicant has worked full-time when not in immigration detention. He has not received or arranged to have any treatment for any claimed PTSD or any other psychological condition. The reports provided by the psychologist and his general practitioner appear to have been solely generated to support the Partner visa application and are not a true reflection of any psychological condition suffered by the applicant.
The Tribunal is not satisfied that the applicant suffers any psychological condition or that the mental health of the applicant provides a compelling reason for not applying the Schedule 3 criteria.
The applicant has also been diagnosed as suffering from [a medical condition]. He was diagnosed with [the medical condition] in 2003, more than 10 years before he arrived in Australia. There is no information that while in Azerbaijan he did not receive appropriate treatment for his [condition] or that he had any difficulties as a result of suffering from [the condition]. He does not take any medication for his [condition] and although he has seen his doctor while in Australia for this condition, is able to manage it adequately through diet and lifestyle activities. There is no information that the applicant would not be able to adequately manage his [condition] if he were required to return to Azerbaijan while any offshore Partner visa application was filed.
It is noted that the applicant’s agent has argued that Azerbaijan does not have the necessary healthcare facilities the applicant requires. The fact is that the applicant was able to manage his [condition] in Azerbaijan accessing their health facilities and, despite claims that he suffers from PTSD, he has done nothing to access any healthcare facilities to address this alleged condition in Australia. The Tribunal does not accept that the applicant will not be able to receive adequate treatment for any condition he may have in Azerbaijan as compared to the treatment that he has sought or received in Australia.
The Tribunal has considered all the medical conditions the applicant claims to suffer. The Tribunal is not satisfied that any claimed psychological or other condition the applicant may have provides a compelling reason for not applying the Schedule 3 criteria.
The Tribunal has not made any critical assessment of whether, at the time of the application or at the time of this decision, the parties were in and continued to be in a genuine, continuing and exclusive relationship. The Tribunal has accepted at face value the claims made by the parties that they were and continue to be in a genuine relationship together and the circumstances of that claimed relationship for the purposes of this decision.
The criteria in cl.820.211(2)(a) is that the applicant is the spouse or de facto partner of the sponsoring partner. This, in part, requires the applicant and the sponsor to be in a genuine, continuing and exclusive relationship. If an applicant does not hold a substantive visa and does not meet the Schedule 3 criteria, the requirement in cl.820.211(2)(d)(ii) to provide compelling reasons for not applying those criteria is in addition to the criteria in cl.820.211(2)(a). If the relationship itself can be considered a compelling reason for not applying the Schedule 3 criteria, it must be the particular aspects of the relationship which must provide a compelling reason for not applying the Schedule 3 criteria and not simply the fact that the parties are in a relationship. The Tribunal has considered all the aspects of the relationship, including the fact that the parties claim to be in a relationship, the length of the claimed relationship, the nature and the extent of the bonds between the parties, and the consequences of any separation even if only for a limited time while an offshore application is being processed when considering if there are compelling reasons for not applying the Schedule 3 criteria.
Any couple where an applicant is required to file an offshore Partner visa application faces some emotional and financial hardship. The financial position of the sponsor is little different to her financial position prior to commencing any relationship with the applicant. She works full-time position she has held for many years. She separated from her previous husband in 2010 and entered into a property settlement where she bought his interest out of their home. There is a mortgage of about [an amount] on this property and she has other credit card liabilities. She has managed to be able to meet her financial outgoings prior to commencing her relationship with the applicant and there is nothing to indicate that she would not be able to continue to meet these outgoings in the future. There is no information that any bank or financial institution has taken any steps against the applicant for any default in her repayments or that she has fallen into arrears on her repayments at any time.

The sponsor’s mother in Russia is now in residential care. The sponsor has been contributing to the expenses her mother is now incurring. Again, there is nothing to show that the sponsor would not be able to continue to make this based on her current income. Her daughter is also in paid employment and there is nothing to indicate that she would not also be able to make some contribution to her grandmother’s expenses if this was required.
There is limited information as to the actual financial contribution the sponsor does receive from the applicant. As indicated above, the applicant has claimed that he has worked all the time he has been in Australia, apart from when in immigration detention, even when he did not have work rights. There is limited information as to the applicant’s own expenses, including covering the costs of his own transport, food, clothing and other living expenses. The applicant’s mother and children continue to live overseas. There is no information as to any financial support that he gives to these people.
The applicant owns property in Azerbaijan. His mother currently lives in the home the applicant owns and he also has a block of land. There is no information that the applicant has any plans to sell these properties. If the sponsor did incur any significant financial hardship while the applicant was awaiting the process of an offshore Partner visa application there is no information which would indicate the applicant could not sell his block of land and use the proceeds from the sale to assist the sponsor. It is likely that if the applicant were to sell that block of land, he would be required to be present in Azerbaijan to finalise the sale.
The Tribunal is not satisfied that any of the financial circumstances of the applicant or the sponsor provide a compelling reason for not applying the Schedule 3 criteria.
The Tribunal does not accept that the sponsor has any emotional dependence upon the applicant which would provide a compelling reason for not applying the Schedule 3 criteria. The applicant was able to travel to Russia to be with her family for an extended period. Any reliance upon the applicant over that period was able to be addressed by the applicant and sponsor communicating with each other in the same manner they could if the applicant returned to Azerbaijan. The sponsor has been employed for over 20 years as a hospital administrator. The Tribunal accepts this position is quite stressful, but the sponsor stated that she enjoyed her work. That the sponsor has been in this position for over 20 years indicates that she has developed strategies to manage the stress of work she does and is not dependent upon the applicant to help her in this regard. There is no information that the sponsor has been diagnosed with any mental health condition or that she is dependent upon the applicant for any reason regarding her mental health. The only health condition that the sponsor has claimed she suffers from is [a certain condition], which is appropriately managed without the assistance of the applicant.
The sponsor’s daughter has a close relationship with her and supported the applicant in the current application. The Tribunal finds that the sponsor will continue to have the emotional support from her daughter over any period that the applicant is required to be offshore awaiting the processing of an offshore Partner visa application. Evidence at the hearing also indicated that the applicant and the sponsor had the support of the Azerbaijani community in Australia. There is nothing to indicate the applicant would not continue to have that support if the applicant is required to file an offshore Partner visa application.
The Tribunal is not satisfied that any emotional hardship that the applicant or sponsor may face if the applicant is required to apply for an offshore Partner visa is any different to the emotional hardship that would be faced by any couple required to file such an application. The Tribunal has considered all the circumstances of the relationship, including its length, the financial and emotional impact of the parties of being required to be separated for any period of time and any concerns the parties may have for each other. The Tribunal is not satisfied that any of the circumstances of the relationship provide a compelling reason for not applying the Schedule 3 criteria.
The Tribunal has assessed the circumstances of the applicant and the sponsor both individually and cumulatively. As set out above, the Tribunal is not satisfied that the individual circumstances of the parties and in particular the claims made by the parties when considered on an individual basis provide a compelling reason for not applying the Schedule 3 criteria. The Tribunal is not satisfied that when considered in combination the total circumstances of the parties provide a compelling reason for not applying the Schedule 3 criteria.
The Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii). There is nothing before the Tribunal to indicate the applicant would meet any of the alternate criteria in cl.820.211.
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Hugh Sanderson
Member

[2018] AATA 5752

11 December 2018

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