Amini (Migration)

[2018] AATA 1372

Amini (Migration) [2018] AATA 1372 (4 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Sahar Amini

VISA APPLICANT:  Mr Umaid Khan Musafir

CASE NUMBER:  1703156

DIBP REFERENCE(S):  BCC2015/2599343

MEMBER:Kira Raif

DATE:4 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 04 April 2018 at 2:43pm

CATCHWORDS

Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – Sponsorship limit – Duration of the relationship – Review applicant’s medical condition – Genuine relationship – Compelling reasons

LEGISLATION
Migration Act 1958, s 65,
Migration Regulations 1994, rr 1.20J, 1.20KA, 1.20KB, Schedule 2 cls 300.213, 300.222

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Afghanistan, born in July 1987. He applied for the visa on 7 September 2015. The delegate refused to grant the visa on 10 January 2017 on the basis that the visa applicant did not satisfy cl.300.222 of Schedule 2 to the Regulations because the sponsor was affected by 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 29 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s children. 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. At the time of decision, this sponsorship must have been approved and still be in force: cl.300.222. Approval of sponsorship is subject to limitations contained in r.1.20J of the Regulations which 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, and in r.1.20KA which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. There are further limits imposed by r.1.20KB.

   Are the sponsorship requirements met?

6. The visa applicant was sponsored by his prospective spouse, Ms Sahar Amini. The Tribunal finds that Ms Amini’s sponsorship was made for the purpose of cl. 300.213 and must be approved at the time of this decision for the purpose of cl. 300.222.

7. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that she has previously sponsored two partners. One sponsorship resulted in the grant of the Prospective Marriage visa in 1995 and the Partner visa in 1996 and the second sponsorship resulted in the grant of the Partner visa in 2006. The review applicant confirmed that information in her oral evidence to the Tribunal. The Tribunal finds that more than one person had been granted the relevant permission as the spouse or prospective spouse of the sponsor on the basis of a sponsorship or nomination. There is nothing to suggest that the circumstances set out in r. 1.20J(4) apply in this case.

8. In her written submission to the delegate the sponsor stated that her previous relationships were abusive but the present relationship offers her the last opportunity. The sponsor states that she has been diagnosed with anxiety and depression in 2010. The sponsor referred to her ties in Australia and states that her son sees the applicant as a father figure. She claims that if the visa is not granted, she would have to relocate to Afghanistan.

9. The delegate noted that the sponsor did not present current medical evidence concerning her condition. The delegate noted that the couple were not yet married and did not have any children together and had spent very limited time together, with the sponsor making three brief visits over four years. The delegate was not satisfied there were compelling circumstances affecting the sponsor.

10. The review applicant presented additional evidence to the Tribunal, including evidence of the relationship and of her financial and business ties to Australia. The applicant presented a medical certificate from Dr Setayesh dated February 2017 confirming the diagnosis of anxiety and depression and setting out the ongoing treatment. In her submission to the Tribunal the review applicant also explained why she believed the delegate’s decision to be unfair.

11. In oral evidence to the Tribunal the review applicant said the applicant treats her well and the way she wants to be treated. He really cares for her and she wants to have that last opportunity. The review applicant said that the present relationship has been in existence longer than her earlier relationships and she did not ‘jump into it’ like with the others. She said her previous partners did not show themselves until they came to Australia but this person is different. As far as the age difference is concerned, the review applicant said that it does not matter for them and it would not be an issue if she was the younger party. The review applicant said the visa applicant changed her life and she does not know what she would do if he cannot come to Australia. The review applicant’s adult children also gave oral evidence to the Tribunal stating how well the relationship works and how close the applicant and the sponsor are. The visa applicant provided a statement to the Tribunal following the hearing addressing the nature of his relationship with the sponsor.

12. The Tribunal is prepared to accept, for the purpose of this review, that the review applicant and her family believe this relationship to be genuine. However, the Tribunal does not consider that the existence of such a relationship is in itself necessarily sufficient to establish the existence of compelling circumstances. Otherwise r. 1.20J(2) would have little to do.

13. The Tribunal has considered the particular circumstances of this relationship. The Tribunal acknowledges that the relationship has been in existence for a number of years, although the parties have not married. The review applicant refers to almost daily telephone communication. The review applicant said they saw each other four times, in 2012, 2013, 2015 and 2017 and spent a couple of weeks together at a time. The Tribunal finds that despite the length of this relationship, the couple had spent relatively short periods of time together, although the Tribunal accepts the review applicant’s evidence that there were good reasons for that, including financial constraints and work commitments. The Tribunal also accepts that the parties communicate frequently and that the visa applicant provides emotional support to the sponsor. In the Tribunal’s view, these are the normal indicia of a relationship and such circumstances are not compelling.

14. With respect to her medical condition, the review applicant told the Tribunal that she saw a psychologist a few times and has been prescribed relaxation medication each night. She also has migraines which are caused by stress. The Tribunal accepts the information contained in the medical reports and accepts that the review applicant suffers from a number of conditions. However, these seem to be managed effectively with the review applicant receiving ongoing medical attention. Contrary to the review applicant’s evidence, the Tribunal is not convinced that the granting of the visa would necessarily cure the review applicant from these conditions, nor that the refusal to grant the visa would exacerbate these conditions. The review applicant has access to adequate medical treatment and is receiving such treatment. In these circumstances, the Tribunal does not consider that the sponsor’s medical condition constitutes a compelling circumstance. 

15. The Tribunal accepts that hardship may be caused to the applicant and sponsor and family members if the sponsorship is not approved. However, the Tribunal is not satisfied that the circumstances put forward are of ‘compelling’ nature. The Tribunal is not satisfied that there are compelling circumstances affecting the sponsor. Therefore, the sponsorship is not approved. The Tribunal finds that the regulation 1.20J is not met. The visa applicant does not meet cl. 300.222.

    Conclusion

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

    DECISION

17. The Tribunal affirms the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa.

    Kira Raif
    Senior Member