Daneshpour (Migration)

[2021] AATA 1932

Daneshpour (Migration) [2021] AATA 1932 (26 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Navid Daneshpour

CASE NUMBER:  2008723

HOME AFFAIRS REFERENCE(S):          BCC2015/3674102

MEMBER:Kira Raif

DATE:26 April 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 26 April 2021 at 7:11pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remittal – Schedule 3 criteria – application lodged outside of relevant timeframe – compelling reasons – genuine and long-term relationship – limited evidence before the Tribunal – sponsor’s health condition – effect of separation – COVID situation in Iran – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211; Schedule 3, Criterion 3001

CASES
Babicci v MIMIA (2005) 141 FCR 285
Chan v MIBP [2017] FCCA 2883
MZYPZ v MIAC [2012] FCA 478
Nazir v MIBP [2018] FCCA 861
Plaintiff M64/2015 v MIBP [2015] HCA 50
Waensila v MIBP [2016] FCAFC 32

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 and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Iran, born in February 1991. He applied for the visa on 4 December 2015 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211 because the delegate found that the applicant did not meet Item 3001 and found there was no compelling circumstances to waive the requirement.

3. The applicant sought review of the delegate’s decision. On 1 June 2018 the Tribunal (differently constituted) affirmed the decision under review. The applicant sought judicial review and in May 2020 the Court remitted the matter to the Tribunal for reconsideration.

4. The applicant appeared before the Tribunal on 19 April 2021 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Does the applicant meet Schedule 3 criteria, or should those criteria be waived?

5. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that he first entered Australia in February 2011 holding a Student visa, which ceased to be in effect on 12 February 2014. The applicant was granted several Bridging E visas and was an unlawful non-citizen for periods of time. The applicant made the application for the Partner visa in December 2015.

6. The Tribunal finds, having regard to that evidence, that the applicant last held a substantive visa when his Student visa ceased in February 2014. He did not have a substantive visa since that time and he was not a holder of a substantive visa at the time the application for the Partner visa was made. There is nothing to suggest that the applicant entered Australia as a holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder. The Tribunal is not satisfied the applicant meets cl. 820.211(d)(i).

7. The applicant is required to satisfy the Schedule 3 criterion 3001 for the purpose of cl. 820.211(d)(ii). There is nothing before the Tribunal to indicate that the applicant held an entry permit that was valid up to and including 31 August 1994. There is nothing to indicate that the applicant became an illegal entrant before 1 September 1994. There is nothing to indicate that the applicant ceased to hold a criminal justice visa on or after 1 September 1994 or that he entered Australia unlawfully on or after 1 September 1994. There is nothing to suggest that the last substantive visa held by the applicant was cancelled and the Tribunal has made a decision to set aside and substitute the cancellation decision.

8. The Tribunal has found that the applicant ceased to hold a substantive visa when his Student visa expired in February 2014. The Tribunal finds that that date is the ‘relevant day’ within the meaning of subclause 3001(2)(c)(i) of Schedule 3. As the application for the Partner visa was made in December 2015, the Tribunal is not satisfied that the application was validly made within 28 days after the relevant day. The Tribunal is not satisfied that the applicant meets Item 3001.

9. Clause 820.211(d)(ii) allows for this criterion to be waived if the Tribunal is satisfied that there are compelling reasons for not applying the criterion.

   Compelling reasons

10. 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.

11. The expression ‘compelling reasons’ is not defined for these purposes. However, reasons that are compelling should ‘force or drive the decision-maker’ ‘irresistibly’ to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied: 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.

12. The applicant refers to having a long term and a supportive relationship with his partner, stating that they rely on each other and cannot be separated. The applicant states that the sponsor has no family in Australia and he is her primary carer. As the Tribunal pointed out in the course of the hearing, there is little documentary evidence of the ongoing relationship between the applicant and the sponsor. The Tribunal invited the applicant during the hearing to provide further evidence of the relationship but this was not done. As the sponsor did not attend the Tribunal hearing, the Tribunal was thus denied an opportunity to question her about the relationship and the effect that separation would have on her. The applicant explained that the sponsor was affected by the previous Tribunal hearing and did not wish to put herself through that again but there is no medical evidence, or otherwise probative evidence to satisfy the Tribunal that the sponsor was unable to participate in a hearing. In the context of the applicant’s claims that the compelling circumstances exist because of his relationship with the sponsor, the Tribunal considers sponsor’s evidence about the relationship, her medical condition and other circumstances to be important. On the limited evidence before it, the Tribunal is not satisfied the applicant’s relationship with the sponsor is of the nature claimed by the applicant. That is, the Tribunal is not satisfied the applicant and the sponsor continue to have a mutually committed exclusive relationship in which they provide each other with, and rely on, the support.

13. However, even if the Tribunal is wrong in its finding, the Tribunal has considered whether the existence of a genuine and long term relationship would constitute, in the circumstances of this case, a compelling reason for the waiver. The Tribunal has formed the view that it would not. This is because the existence of a genuine spousal relationship is the basic requirement for a partner visa application. The Tribunal is not satisfied that the genuineness, mutual commitment, emotional support, continuing nature and longevity of the parties’ relationship are on their own and without more, circumstances that should compel the Tribunal to not apply the Schedule 3 criteria. In reaching this conclusion, the Tribunal has had regard to the reasoning in Chan v MIBP [2017] FCCA 2883 at [14] and Nazir v MIBP [2018] FCCA 861 at [29]–[30].

14. The Tribunal has also considered whether the applicant’s relationship with the sponsor can give rise to compelling circumstances in light of its particular characteristics. The applicant refers to the sponsor’s health and the support he provides to his wife. The Tribunal accepts that the sponsor has been diagnosed with anxiety and treated for that  condition. The applicant states that his wife has no relatives and few friends and relies on him for support. For the reasons stated above, the Tribunal does not accept the applicant’s description of the relationship and the nature and level of support that he provides to the sponsor. Following the hearing, the applicant provided to the Tribunal the sponsor’s current medical report which refers to the applicant playing a crucial role in managing the sponsor’s condition and the ‘devastating’ effect of separation. The Tribunal gives this evidence limited weight because the report fails to identify the basis of the writer’s knowledge and opinion. The writer of the report, Dr Kolahdooz offers very little detail about the extent and the type of support the applicant provides (there is reference to physical and sexual contact), how that support assists the sponsor, what, if any support can be provided if the applicant was to leave Australia (the Tribunal acknowledges it may be a different type of support) and why such support would not be adequate for the sponsor even if it of different nature. Dr Kolahdooz does not explain the reasons behind the conclusion that separation would be ‘devastating’. It is not apparent from the report that Dr Kolahdooz has considered what contact may exist  irrespective of the applicant’s place of residence and whether separation would be permanent or temporary. The Tribunal considers the medical report unhelpful but is prepared to accept that the separation of the applicant and sponsor may adversely affect the sponsor’s medical condition. However, the Tribunal is not satisfied on the evidence before it that the adverse effect would be of such significance as to be of sufficiently powerful and compelling nature.

15. The applicant states that he has been married for a number of years and has lived in Australia. He claims they cannot be separated and if he leaves, it would have an impact on his wife. The applicant states that his wife has been diagnosed with anxiety and he has also been feeling anxious. The applicant states that his wife continues with the anxiety medication and receives regular counselling from a psychologist and a psychiatrist. These claims have been addressed above. The applicant told the Tribunal that he does not attend medical consultations with the sponsor. When asked what support he provides to his wife, the applicant stated that they are very close and share everything and the support he provides is by talking to her and being there for her. He states they talk about everything. The Tribunal finds the applicant’s evidence to be vague and not necessarily consistent with the information provided by Dr Kolahdooz about the nature of support the applicant offers to the sponsor. The Tribunal has formed the view that the applicant’s help is, at best, minimal. The Tribunal reaches this conclusion despite the opinion Dr Kolahdooz contained in his report. Essentially, the Tribunal is not satisfied in the absence of any explanation that Dr Kolahdooz’s conclusion is based on probative evidence.

16. The Tribunal is also of the view that if the applicant does provide help to the sponsor by talking to her, as he claims, he would be able to do that whether or not he remains in Australia. That is, the applicant was required to leave Australia as a result of the visa not being granted, he and the sponsor may be able to maintain contact and communication and the applicant would be able to provide some level of support to the sponsor. The applicant states that being physically separated is not the same as being together. He states he provides physical comfort which would not be possible if he is not there and his wife may not have time or the capacity to call him if he is overseas as she is often too tired. The Tribunal accepts that ‘it is not the same’ if the applicant and the sponsor are physically separated and if the applicant is required to leave Australia but that is not sufficient to be compelling, in the Tribunal’s view. The Tribunal acknowledges that the nature and the level of support that the applicant may be able to provide to the sponsor, should he leave Australia, would be different and may be diminished. However, as noted above, the Tribunal is not satisfied that the applicant plays an active role in managing the sponsor’s condition or that the sponsor relies on the applicant to manage her condition. In such circumstances, the Tribunal is of the view that any diminution of support that may result in the applicant’s departure from Australia, or the variation in the type and nature of support he is able to provide, do not amount to a compelling circumstance for the waiver.

17. The applicant states that he has to complete 1 year and 8 months of army service and his passport will be taken away from him and not returned until he has completed army service. The applicant states that due to Covid the situation is unsafe and he would have to put himself in danger if he is to do the army service. The applicant states that his passport would be taken away from him upon return to Iran and he will not be able to apply for a visa or travel until he completes the military service and the passport is returned. The Tribunal accepts that if the applicant return to Iran, he may be required to undertake military service for close to two years and that he may be unable to reapply for the visa, or travel, until that is done. The applicant’s evidence does not appear to suggest that he objects to the military service itself, rather to the risks it presents (due to Covid) and the delay in may cause him ion being able to reapply for the visa. However, in the particular circumstances of this case where the Tribunal has formed the view that the sponsor’s condition would not be adversely affected by the separation to a significant extent and where the relationship itself does not give rise to compelling circumstances, the Tribunal does not accept that the delay in the applicant seeking a partner visa in the future constitutes a compelling reason for the waiver.

18. The applicant states that he would be at risk due to the Covid situation in Iran. The applicant refers to the high rate of disease and fatalities and states that he would be exposed to greater danger in the military. The Tribunal accepts that there may be a risk due to Covid in Iran, but that  risks also exists in every other country, albeit at different levels. There can be no certainty that the situation in Iran will be poor while the situation in Australia will continue to be relatively safe. Such things are unpredictable and changeable and the risk of being infected with Covid is not absent in Australia. The Tribunal does not consider this to be a compelling circumstance.

19. The applicant states that the situation is uncertain due to the pandemic and if he leaves Australia, it is not known when he will be able to reapply for the Partner visa and return to Australia due to travel restrictions and his wife may be unable to visit him in Iran. The applicant refers to the stress due to the pandemic. The Tribunal is mindful that if the applicant reapplies for the visa and is granted the visa, the applicant can apply for an exemption to return to Australia. There is a possibility that he may be able to delay his departure from Australia until there are fewer restrictions on travel. As such, while the Tribunal accepts that the pandemic may delay travel (and that the sponsor may be unable to travel to Iran during the pandemic) and delay the couple’s ability to be reunited if the applicant is granted a visa in the future, their separation would not be permanent if the visa is granted in the future. Again, the Tribunal accepts that considerable hardship may be caused to the applicant and the sponsor because of the uncertainty caused by the pandemic and other factors but the Tribunal is not satisfied such factors are of sufficiently compelling nature. 

20. The applicant states that they had been going through the process for close to seven years and would have to start again if he was to return to Iran. The Tribunal accepts that this is so. The applicant states that he has nothing to go back to and no home to live in. The Tribunal accepts that the applicant has been living in Australia for a number of years and may not have a job or accommodation to go back to. The applicant’s evidence to the Tribunal is that his parents and sister live in Iran and may be able to offer him limited accommodation but they all live in a two-bedroom unit so it is not a long term solution. The applicant states that his father does not work and his sister has been providing their parents with some financial support but due to Covid, the chances of his getting employment are small and he may not earn enough to pay for accommodation. The Tribunal does not accept that evidence as the applicant presented no evidence of having searched for employment and being unable to find it, there is little evidence of what the applicant may earn and what his living expenses would be. The Tribunal is not satisfied the applicant would be unable to support himself if he were to return to Iran. The Tribunal also acknowledges that the applicant has spent considerable time in Australia but the Tribunal is mindful that the applicant has not been granted a permanent visa to remain in Australia and until such visa is granted, the applicant cannot assume he would be permitted to live in Australia permanently.

21. The applicant refers to the mortgage and the financial hardship and he presented to the Tribunal evidence of the mortgage. The Tribunal accepts that there is a mortgage but the applicant’s evidence is that he has not been allowed to work for over a year, since his appeal, and he states that the sponsor alone is responsible for the mortgage repayments. In these circumstances, the Tribunal does not consider that the applicant’s departure from Australia, if that is the outcome of the waiver not being applied, will cause financial difficulty to the applicant or the sponsor, including with the repayment of the mortgage.

22. The Tribunal has considered the totality of the applicant’s circumstances singularly and cumulatively. In the Tribunal’s view, none of these matters, whether considered on their own or in their totality, amount to compelling circumstances. In reaching this conclusion, the Tribunal places weight on its findings that the applicant may not be in a mutually committed spousal relationship with the sponsor at the time of this decision and that any support he provides to the sponsor is of limited nature. In these particular circumstances, the Tribunal has formed the view that all of the factors put forward by the applicant do not give rise to compelling circumstances for the waiver.

23. 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).

    Conclusion

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

    DECISION

25. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Kira Raif
    Senior Member