ABAZI (Migration) - [2021] AATA 3004

ABAZI (Migration) [2021] AATA 3004 (26 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Irfan ABAZI
VISA APPLICANTS:  Entela Qose
Dhimitrios Qazimllari
CASE NUMBER:  1929905
DIBP REFERENCE(S):  BCC2015/2933276 BCC2915/2933276 OSF2015/038135
MEMBER:P. Wood
DATE:26 June 2021
PLACE OF DECISION:  Melbourne, Victoria
DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:
·cl.300.222 of Schedule 2 to the Regulations

Statement made on 26 June 2021 at 6:58pm
CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – Federal Circuit Court remittal – approved sponsorship – sponsorship limitation – two previously approved sponsorships – compelling circumstances – sponsor’s mental health condition – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20J; Schedule 2, cl 300.222
CASES
Babicci v MIMIA [2004] FCA 1645
Babicci v MIMIA [2005] FCAFC 77
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visas on 8 October 2015. At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 of Schedule 2 to the Migration Regulations 1994 (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. Relevantly to this matter the primary criteria include cl 300.222(1), requiring that the sponsorship of the applicant has been approved by the Minister and is still in force.
The delegate refused to grant the visas on 27 May 2016 on the basis that the first named visa applicant did not satisfy cl.300.222 of Schedule 2 to the Regulations because the delegate did not approve the sponsorship due to the sponsorship limitation in reg 1.20J of the Regulations.
The review applicant applied to the Tribunal for review of the decision on 8 July 2016. The review applicant was represented in relation to the review by his registered migration agent.
The applicant’s representative provided the following material to the Tribunal in support of the application for review:
·     Bank transfers from the sponsor to the visa applicant dating from 20 January 2017 to 3 May 2018
·     A letter of support from the then-mayor of Greater Dandenong, Jim Memeti, dated 18 April 2017
·     Evidence of the parties’ travel together
·     Photographs of the parties together
·     Records of correspondence between the parties dated from 21 October 2015 to 19 June 2018
The review applicant initially appeared before the Tribunal, differently constituted, on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: ABAZI (Migration) [2021] AATA 3004
Case: [2021] AATA 3004
Decision Date: 26 June 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a Prospective Marriage (Temporary) (Class TO) visa (Subclass 300) application. The applicant sought review of a decision concerning their eligibility for the visa, which involved an approved sponsorship. The core of the dispute revolved around limitations placed on the sponsor under migration regulations.

The Tribunal was required to determine whether the sponsor met the requirements of regulation 1.20J of the Migration Regulations 1994, which limits the number of sponsorships a person can undertake and sets a minimum time between sponsorships. Specifically, the Tribunal had to assess if there were "compelling circumstances" that would justify waiving these limitations, given the sponsor had already been involved in two previous approved sponsorships.

The Tribunal reasoned that regulation 1.20J(2) allows for a waiver of the sponsorship limitations if compelling circumstances are demonstrated. The Tribunal applied the definition of "compelling circumstances" as those that evoke interest or attention in a powerfully irresistible way, or are so powerful as to lead to a positive finding that the provision should be waived, referencing the principles from *Babicci v MIMIA*. In this instance, the Tribunal found that the sponsor's enduring mental health condition, which had been treated for over a decade and had deteriorated following the COVID-19 pandemic and associated restrictions, constituted compelling circumstances.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under clause 300.222 of Schedule 2 to the Regulations, specifically in relation to the sponsorship.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal has read and had regard to the material provided by the applicant’s migration agent to the Tribunal as previously constituted (detailed above). Clause 300.213 requires that at the time of application the visa applicant is sponsored by the review applicant, and that the review applicant has turned 18. On all the evidence, cl.300.213 is satisfied. Clause 300.222 requires that the sponsorship referred to in cl.300.213 has been approved and is still in force. Approval of sponsorship is subject to a number of limitations contained in the Regulations. For present purposes, the relevant limitation is contained in reg 1.20J of the Regulations. Regulation 1.20J of the Regulations sets 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. Under r.1.20J, 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 (or entry permit) or a visa (or entry permit) granted on the basis of the domestic violence provisions. If there has been one previous sponsorship or nomination, or if the sponsor was granted a visa or entry permit as a result of being sponsored, a period of 5 years must have passed since the date of the earlier visa application. These requirements apply unless the Minister, or the Tribunal on review, is satisfied there are compelling circumstances affecting the sponsor: r.1.20J(2). In this case the sponsor has already been involved in two approved sponsorships. Firstly, he sponsored a Ms Abazi in 1991. There were three children of this relationship, but the couple ultimately divorced. In 2011, he sponsored a Ms Kucuku. This relationship broke down quickly and Ms Kucuku departed Australia after four weeks. The expression “compelling circumstances” is not defined in the legislation. The Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: Babicci v MIMIA [2004] FCA 1645 or are ‘so powerful that they lead the [Tribunal] to make a positive finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77. Significantly, the Tribunal observes that evidence of the sponsor’s mental health was not available to the Department at the time of its decision. Having considered this evidence, the Tribunal is satisfied that the sponsor suffers from an enduring mental health condition and has been undergoing treatment under the supervision of his chosen medical practitioner for more than a decade. Further, having tested the evidence of the sponsor concerning the deterioration of his condition more recently, particularly following the onset of the COVID-19 pandemic, associated restrictions and repeated lockdowns in the sponsor’s home state, the Tribunal considers that there are compelling circumstances affecting the sponsor in this case.

Decision

Reasons for decision

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 300 visa.DECISION The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:·cl.300.222 of Schedule 2 to the RegulationsP. WoodSenior Member

Ratio Decidendi

Legal Principle Established

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