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

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).
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.
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.
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?
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.
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…

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.

Continue reading Daneshpour (Migration)

Details

AGLC: Daneshpour (Migration) [2021] AATA 1932
Case: [2021] AATA 1932
Decision Date: 26 April 2021

CaseChat Overview and Summary

The applicant, Mr. Daneshpour, sought review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the refusal of his Partner (Temporary) (Class UK) visa (subclass 820). The application for the visa had been lodged outside the prescribed timeframe, meaning the applicant was required to demonstrate compelling reasons for the delay and that he was in a genuine and long-term relationship with his sponsor. The Federal Circuit Court had previously remitted the matter to the AAT for reconsideration.

The primary legal issue before the AAT was whether the applicant had satisfied the Schedule 3 criteria, specifically the requirement to demonstrate compelling reasons for lodging the application outside the specified period. This involved assessing the evidence presented regarding the genuineness and long-term nature of the relationship, the sponsor's health condition, the potential impact of separation, and the prevailing COVID-19 situation in Iran.

The Senior Member found that the evidence before the Tribunal was limited and insufficient to establish compelling reasons for the late lodgement. While acknowledging the sponsor's health condition and the COVID-19 situation in Iran, these factors were not considered sufficiently compelling to overcome the failure to meet the lodgement timeframe. The Tribunal concluded that the applicant had not satisfied the criteria for the grant of the visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.