Abazi (Migration)

[2018] AATA 2997

Abazi (Migration) [2018] AATA 2997 (9 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Irfan Abazi

VISA APPLICANTS:  Ms Entela Qose
Mr Dhimitrios Qazimllari

CASE NUMBER:  1610862

DIBP REFERENCE(S):  OSF2015/038135

MEMBER:Kira Raif

DATE:9 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.

Statement made on 09 July 2018 at 12:50pm

CATCHWORDS
Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – Long term genuine relationship – Approval of sponsorship – Sponsorship limitation – Compelling reasons – Claimed deterioration in sponsor’s health – Frequency of visits – Time spent together – Ongoing medical treatment – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth). r1.20J, Schedule 2 cls 300.213, 300.222

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 are nationals of Albania. They applied for the visas on 8 October 2015. 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 r. 1.20J. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 27 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the review applicant’s relatives. The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian and English languages. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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).

5. 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.

6. 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 including the following: r.1.20J 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; r.1.20KA limits the period before which certain Parent visa holders can sponsor another person for a Partner visa; r.1.20KB limits sponsorship by persons charged with, or convicted of, certain offences (where the visa application was made on or after 27 March 2010); r.1.20KC limits sponsorship by persons convicted of a relevant offence in relation to which they have a significant criminal record (where the visa application was made on or after 18 November 2016).

7. For visa applications made on or after 18 November 2016, it also requires the prospective spouse (that is, the sponsor) to have consented for the Department to disclose to each sponsored applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence.

   Is the visa applicant sponsored as required?

8. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that he had previously sponsored two applicants for Partner and Prospective Marriage visas. According to the information in the decision record, the review applicant had sponsored Ms Abazi for a subclass 100 visa, which was granted in February 1991. The couple have three children and they divorced in October 2010. In July 2011 the review applicant sponsored Ms Kucuku for a Prospective Marriage visa. That visa was granted in May 2012. Ms Kucuku arrived in Australia in August 2012 and departed four weeks later. The review applicant subsequently informed the Department that the relationship ended in February 2013. The review applicant stated in oral evidence to the Tribunal that his second sponsored partner spent a month in Australia before returning to Albania. He was not able to travel due to work commitments and his partner believed he was cheating. The relationship started to deteriorate and ultimately the relationship ended and the breakdown was initiated by his spouse and not by himself. He then sent an email to Immigration about the relationship breakdown.

9. The Tribunal acknowledges that the review applicant’s relationships with his previous partners had ended and the second relationship was a fairly brief one before its breakdown. The Tribunal accepts that the second partner has not gained permanent residence in Australia and does not live in Australia. However, the review applicant does not dispute that she has been granted a relevant visa. The Tribunal does not consider that the cessation of such relationships, or the circumstances in which the relationships ended, constitute, in this case, compelling circumstances affecting the sponsor. In particular, the Tribunal notes in relation to the second relationship, that according to the review applicant’s evidence, it ended because there was lack of trust from the visa applicant and because, he believed, of her career. There is nothing compelling about the circumstances of that relationship or its breakdown.

10. The review applicant’s representative submits that the purpose of the sponsorship limitations is to protect women from abusive sponsors and this is not the case here. That is not apparent from the wording of reg. 1.20J. There is an express reference to multiple sponsorships which gives rise to the sponsorship limitation. There is nothing in the wording of that provision to indicate that the sponsorship limitation does not apply if there was no abusive relationship or if it was the visa applicant, rather than the sponsor, who caused the relationship breakdown.

11. With respect to compelling circumstances, the review applicant told the Tribunal that he and the visa applicant love each other and they had been together for five years and have lived together for two years. The review applicant told the Tribunal that they live in different countries and he has spent a large sum of money and that money could have been better spent. The review applicant said that although he has not travelled to see the visa applicant for about two years, they speak to each other daily and he provides financial support to the visa applicant. The review applicant spoke about the uncertainty of the visa processing and the effect of that uncertainty on him. The review applicant provided to the Tribunal a variety of documents concerning his relationship with the visa applicant, including evidence of communication and of financial arrangements, as well as other documents. Both the visa applicant and the review applicant and the review applicant’s witnesses spoke about their relationship in oral evidence to the Tribunal. The Tribunal acknowledges that evidence but even if a genuine and long-standing relationship between the visa applicant and the sponsor exists, the Tribunal does not consider that to be sufficient, in the circumstances of this case, to establish the existence of compelling circumstances affecting the sponsor. The Tribunal is mindful that the application is for the Prospective Marriage visa. The parties are not married and do not claim to meet the requirements for the grant of the Partner visa. Their claim is that they intend to live together as spouses in the future, as required by cl 300.216. The review applicant’s evidence to the Tribunal is that although the relationship has been in existence for five years and they have lived together, for a number of reasons he has not visited the visa applicant for two years. Despite the longevity of their relationship, the parties had spent relatively little time together and not in the past two years. In such circumstances, the Tribunal is not satisfied that a long term genuine relationship, even if one was established, would give rise to compelling circumstances affecting the sponsor.

12. The review applicant’s cousin and nephew spoke about the close relationship the sponsor has with the visa applicant and how much happier the sponsor is when he is with the visa applicant. The visa applicant told the Tribunal that they love each other very much and want to be together. The Tribunal accepts that evidence. The representative notes that the review applicant and his relatives all believe there are compelling circumstances. The Tribunal is prepared to accept that, however, it is for the Minister, or the Tribunal on review, to be satisfied that there are compelling circumstances affecting the sponsor. It is not sufficient that the sponsor or his family believe that there are compelling circumstances.

13. The review applicant refers to the emotional support he and the visa applicant provide to each other. The Tribunal is prepared to accept that evidence but the Tribunal does not consider that the provision of emotional support is limited to the circumstances where the parties live under one roof, or in the same country. As noted above, the parties claim to be in a relationship for a number of years but have lived away from each other for the majority of this period. Their claim is that despite living in different countries, they communicate frequently and provide each other with emotional support. In the Tribunal’s view, their ability to do so in the past indicates the parties will continue to be able to provide each other with emotional support in the future. The Tribunal does not consider the need for such support constitutes a compelling circumstance affecting the sponsor.

14. The review applicant told the Tribunal that things have been difficult for him at work and he has been feeling depressed and unable to sleep. The visa applicant repeatedly referred to the sponsor’s health issues and said he has problems with sleeping and stress or depression. The review applicant claims separation from the visa applicant is affecting his health. The review applicant said that the uncertainty has been difficult for him because he feels this is his last chance at happiness, given his age. The two witnesses, the review applicant’s cousin and nephew, also spoke about the review applicant’s mental state, saying he is happier when he is with his partner. The Tribunal notes that the review applicant has not made these claims throughout the primary processing of the application and has presented no medical evidence in relation to the claimed depression prior to the hearing. The claim of depression and poor health was raised for the first time during the Tribunal hearing, despite multiple written submissions that the review applicant has made to the delegate and the Tribunal and despite the review applicant being represented by a migration agent throughout this review.

15. Following the hearing the review applicant provided a number of additional materials to the Tribunal which included a medical report from Langton Medical Centre dated 2 July 2018. The report is prepared by Dr Thornton who has been the review applicant’s ‘usual doctor’ for the past year. Dr Thornton indicates that the review applicant has been suffering from depression and anxiety for 20 years and his professional life had been adversely affected. Dr Thornton indicates that the review applicant’s depression had deepened in the past 3-4 years due to unsatisfactory arrangements with the visa applicant and the review applicant had been referred to a psychiatrist in 2017 but the appointment has been cancelled. Dr Thornton refers to prescribed medication. Dr Thornton states that if the visa applicant was able to travel to Australia, the review applicant’s depression would improve.

16. The Tribunal considers Dr Thornton’s report problematic. Dr Thornton indicates he has been treating the applicant for the past year and while he makes reference to the review applicant’s condition over an extended period of time, the report does not indicate on what basis this assessment is provided. More problematically, there is no explained basis for Dr Thornton’s observation that the visa applicant’s presence in Australia would improve the review applicant’s mental health. It is not clear from the presented evidence that Dr Thornton is familiar with the circumstances of the review applicant’s relationship with the visa applicant or had ever observed the couple’s interactions or that there is any probative basis for the observation that the visa applicant’s presence in Australia would affect the review applicant’s health.

17. The Tribunal notes that the review applicant’s medical condition does not appear to have been caused by issues with the visa applicant or his separation with the visa applicant, given that the condition has been in existence for 20 years. The condition appears to be well managed through medication and despite the condition, the review applicant is able to engage in daily activities, including employment, community work and others. The Tribunal considers it significant that even despite the claimed deterioration in the review applicant’s health in the past few years, the review applicant chose not to pursue treatment with the psychiatrist in 2017 and there is no evidence that he has undertaken such treatment since that time. Indeed, the only treatment the review applicant appears to have pursued is with the GP and through medication. That supports the Tribunal’s view that the review applicant’s condition is well managed. The Tribunal is prepared to accept that the couple want to be together and that they are happier when they are together and the Tribunal also accepts that the sponsor due to his age, believes this is his last chance. However, in the circumstances of this case, the Tribunal does not consider that the review applicant’s health condition is of such nature or severity as to give rise to compelling circumstances.

18. The Tribunal is not satisfied that in the circumstances of this case, the couple’s feelings for each other and their desire to be together constitute compelling circumstances.

19. The review applicant also provided to the Tribunal evidence of his community involvement and voluntary work, including a number of supporting letters. The Tribunal acknowledges that evidence but the Tribunal does not consider that the review applicant’s community work give rise to compelling circumstances affecting the sponsor. Insofar as this evidence is presented to establish that the review applicant cannot live overseas, the Tribunal accepts that he may find it difficult to do so on a long term basis.

20. The review applicant also provided a statement from his company outlining his involvement in the business and stating that the company is not in a position ‘to allow [the review applicant] to go abroad again to live in Albania’ as that would affect the business. The Tribunal is mindful that the review applicant has every right to leave the company at any time, should he choose to do that. It may be beneficial for the company to have the review applicant work for it but there can be no guarantee that he will do so forever or even long term. The Tribunal does not accept that the company would not have made plans for, or given consideration to, replacing the review applicant or making alternative arrangements for his contribution, should he choose to leave at some point. While the Tribunal accepts that the review applicant’s presence in Australia is beneficial to the company and his residence overseas may adversely affect the business, in circumstances where the review applicant is able to leave the business at any time and for any reason, the Tribunal does not consider that the review applicant’s employment commitments constitute compelling circumstances.

21. The Managing Director/ HR of the review applicant’s employer also states in her letter that she believes the visa applicant’s entry to Australia would benefit all parties and the review applicant would have less stress and it would help with his depression and mental health and enable him to attend work regularly. With respect, there is no evidence before the Tribunal that the writer has the requisite qualifications to make any assessment of the review applicant’s medical condition and mental health and the effect of the visa applicant’s presence in Australia on the review applicant’s health. The Tribunal considers such observations unhelpful.

22. The Tribunal has considered the review applicant’s circumstances singularly and cumulatively. The Tribunal is prepared to accept, for the purpose of this application, that the applicant and the sponsor may intend to establish a genuine relationship and have been committed to each other for a number of years. The Tribunal accepts that they both wish to be together and that those around the review applicant believe it would be of benefit to him. The Tribunal acknowledges the circumstances of the previous relationships breakdown. The Tribunal is prepared to accept that the couple rely on each other for comfort and emotional support. The Tribunal accepts that it may be difficult for the review applicant to establish long term residence overseas, due to his family and work commitments. The Tribunal also accepts that the review applicant has been receiving treatment for a medical condition. However, the Tribunal has formed the view that the totality of such circumstances are not of compelling nature. It is common, in the Tribunal’s view, for those seeking Partner or Prospective Marriage visas, to wish to be together and their preference may be to live together in Australia.  The Tribunal places weight on the fact that the parties have spent little time together in the past two years. The Tribunal places weight on the fact that the sponsor’s medical condition appears to be well managed through ongoing treatment and despite the claimed deterioration, the sponsor does not appear to have pursued specialist treatment as recommended by his GP. His condition has not affected his ability to engage in other activities. The Tribunal does not accept that his health would deteriorate unless the visa applicant’s visa is granted.

23. On the evidence before it, the Tribunal is not satisfied that there are compelling circumstances affecting the sponsor. The Tribunal does not approve the sponsorship under r. 1.20J(2) and finds that the visa applicant does not meet r. 1.20J for the purpose of cl. 300.222.

    Conclusion

24. For the reasons above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

25. The Tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.

    Kira Raif
    Senior Member