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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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

6. The review applicant initially appeared before the Tribunal, differently constituted, on 27 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s cousin and nephew and from the visa applicant by telephone.

7. Following the hearing the applicant’s representative provided the following further supporting material:

   ·     An AFP disclosure certificate relating to the sponsor dated 29 June 2018, recording no disclosable outcomes

   ·     A medical report from the review applicant’s treating medical practitioner detailing the review applicant’s history of depression and anxiety and assessing that allowing the visa applicant to join the review applicant would improve the review applicant’s mental health.

   ·     A letter from the chairman of the Albanian Eagles Genuine Gym attesting to the review applicant’s volunteering and the affect that him leaving Australia would have.

   ·     A letter from the Managing Director/Human Resources of Genuine Steel attesting to long-standing role of the review applicant as a partner in the business, and the importance of the review applicant in the business and opining that allowing the visa applicant to join him would help his mental health and improve his work performance

   ·     An ASIC Extract showing the review applicant as the former director of the above business.

   ·     Photos of a Genuine Gym that was supported by time and donations from the review applicant and his company.

   ·     Submissions dated 8 July 2018 relating to the waiver of reg 1.20J

8. On 9 July 2018 the first Tribunal made a decision to affirm the decision of the delegate not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.

9. The applicant applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. On 20 September 2019 His Honour Judge Neville made orders setting aside the decision of the Tribunal and remitting it for determination for assessment by a different reviewer [sic]. His Honour gave three reasons for this decision:

   ·that the Tribunal’s consideration of what constituted ‘compelling circumstances’ failed to properly consider relevant judicial authority and that the Tribunal’s finding that the parties could keep their relationship going ‘ad infinitum’ while they resided in separate countries was legally unreasonable.

   ·that the Tribunal failed to have regard to the evidence from the applicant’s doctor and employer relating to the effect of the parties’ separation on the applicant’s mental health. 

   ·that the interpretation services provided by the Tribunal were sufficiently deficient to give rise to a finding against the applicant.

10. The review applicant appeared before the Tribunal, as currently constituted, during the COVID-19 pandemic to give evidence and present arguments. Due to the COVID-19 pandemic the hearing took place by videoconference. The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian and English languages.

11. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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).

13. 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.

14. 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.  

15. 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).

16. In this case the sponsor has already been involved in two approved sponsorships.

17. Firstly, he sponsored a Ms Abazi in 1991. There were three children of this relationship, but the couple ultimately divorced.

18. In 2011, he sponsored a Ms Kucuku. This relationship broke down quickly and Ms Kucuku departed Australia after four weeks.

19. 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.

20. 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.

21. Therefore, on the evidence before the Tribunal the requirements of cl.300.222 are met.

22. 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

23. 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

    P. Wood
    Senior Member