Gorgievska (Migration) - [2018] AATA 5310

Gorgievska (Migration) [2018] AATA 5310 (26 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Lila Gorgievska
VISA APPLICANT:  Mr Zoran Talevski
CASE NUMBER:  1711127
DIBP REFERENCE(S):  OSF2016029242
MEMBER:Meena Sripathy
DATE:26 October 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.211 of Schedule 2 to the Regulations
·cl.309.213 of Schedule 2 to the Regulations
·cl.309.221 of Schedule 2 to the Regulations
·cl.309.222 of Schedule 2 to the Regulations.

Statement made on 26 October 2018 at 4:13pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – sponsorship limitation – previously sponsored two partners – compelling circumstances – past relationship history – continuance and genuineness of current relationship – degree of hardship – supporting role for daughter and grandchildren in Australia – grandson’s significant disability – credible witnesses – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20J; Schedule 2, cls 309.211, 309.213, 309.221, 309.222

CASES
Babicci v MIMIA [2004] FCA 1645
Babicci v MIMIA [2005] FCAFC 77

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 on 27 April 2017 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 19 December 2016 on the basis of his relationship with his sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.222 because the delegate found that the sponsorship cannot be approved on the basis of r.1.20J, as the sponsor has previously sponsored two partners who were granted Partner visas and the delegate was not satisfied there were compelling reasons affecting the sponsor.
The review applicant appeared before the Tribunal on 26 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Marija Macri, the review applicant’s daughter.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa applicant is a 33 year old man from the Republic of Macedonia. He indicates no previous marriage or de facto relationships. He has parents and one sister in Macedonia. He is sponsored by the review applicant, who is a 47…

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.

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Details

AGLC: Gorgievska (Migration) [2018] AATA 5310
Case: [2018] AATA 5310
Decision Date: 26 October 2018

CaseChat Overview and Summary

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a Partner (Provisional) (Class UF) visa, Subclass 309. The visa applicant, a 33-year-old man from the Republic of Macedonia, was sponsored by the review applicant, a 47-year-old dual Macedonian/Australian citizen. The primary dispute revolved around a sponsorship limitation, as the sponsor had previously sponsored two partners. The delegate had refused the application, finding that the relationship was not longstanding and that no compelling circumstances existed to override the sponsorship limitation.

The Tribunal was required to determine whether compelling circumstances existed that justified waiving the sponsorship limitation, considering the sponsor's past relationship history and the genuineness and continuance of her current relationship with the visa applicant. Specifically, the Tribunal needed to assess the degree of hardship that would befall the sponsor if the visa were refused, taking into account her role in supporting her daughter and grandchildren in Australia, including a grandson with a significant disability.

The Tribunal reasoned that the sponsor's extensive submission, detailing her difficult past relationships and her current supportive role for her daughter and grandchildren, along with the psychiatric report from Dr. Blagoje Kuljic, presented compelling circumstances. Dr. Kuljic's report indicated that the sponsor suffered from adjustment disorder with anxiety and depressed mood, exacerbated by the recent death of her brother and ongoing family stressors. He opined that a refusal of the visa would likely worsen her mental health condition, particularly given the support she provides to her daughter and grandson. The Tribunal found that the evidence, including further documentation of the relationship's genuineness and the sponsor's mental health, demonstrated compelling reasons to consider the sponsorship limitation.

Consequently, the Tribunal remitted the application for a Partner (Provisional) (Class UF) visa for reconsideration. The Tribunal directed that the visa applicant met specific criteria, namely clauses 309.211, 309.213, 309.221, and 309.222 of Schedule 2 to the Regulations, indicating that the remaining criteria for the visa should be assessed by the Minister.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The visa applicant is a 33 year old man from the Republic of Macedonia. He indicates no previous marriage or de facto relationships. He has parents and one sister in Macedonia. He is sponsored by the review applicant, who is a 47 year old dual Macedonian/Australian citizen. At the time of the application she had a father and brother who reside in Macedonia and a daughter residing in Australia. She was previously married twice before. The parties met in person in August 2015 in Macedonia and married there on 8 August 2016. Evidence of the sponsor’s previous marriages and divorces, visa applicant’s identity, sponsor’s employment, statements of the history of the relationship by the parties and supporting Statutory Declarations from third parties were provided in support of the application. The sponsor also provided a submission addressing the r.120J sponsorship limitation issue, setting out her background and past relationships. She explained she was born in Australia in 1971 and in 1980 her parents returned to Macedonia to live. While there, at age 14, her mother died of cancer and she went to live with her father and his new wife with whom she didn’t get along. She got involved in a relationship and married and one year later gave birth to her daughter. Her husband had gambling and drinking problems and was abusive and eventually they divorced. After this, while on holidays in Macedonia she met her second husband and married in 2000. After he came to Australia in 2002, he eventually lost interest in her and left her and they divorced in 2005. In 2009 her daughter got married and had 3 children, including one child who was born with cerebral palsy. She busied herself helping and supporting her daughter and her family. In 2013 she met the visa applicant, initially by chatting over the internet and then in person in 2015. They fell in love and married in 2016 and lodged this application. The sponsor explains that she wants to be with the visa applicant but feels torn by her daughter’s need for her practical and emotional support in Australia. The delegate refused the application because he was not satisfied that the visa applicant and sponsor’s relationship was longstanding or that any of the other circumstances set out in the relevant departmental policy guidelines apply and was not satisfied there were compelling reasons affecting the sponsor. Before the Tribunal the review applicant has submitted a substantial amount of further evidence to support the existence of an ongoing and genuine relationship with the visa applicant including support statements from friends and close family members, evidence of regular communication between the parties and evidence of a further visit by her to Macedonia in 2017. She also submitted a report by Dr Blagoje Kuljic, Consultant Psychiatrist, who states that he has been seeing her since June 2017 when she was diagnosed with adjustment disorder with anxiety and depressed mood in the context of family issues. He describes her symptoms and treatment provided. The report refers also to a further stressor in her life when her only brother was killed in a car accident in December 2017 which led to a worsening of her symptoms. Dr Kuljic states his opinion that refusal of the visa would lead to the review applicant losing a significant person who can help her cope with her recent loss of her only brother and long lasting family situation supporting her daughter who also suffers depression and grandson with cerebral palsy. Her existing anxiety and depressive symptoms are likely to worsen with an adverse result on this application.

Decision

Reasons for decision

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 309 visa.DECISION The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:·cl.309.211 of Schedule 2 to the Regulations;·cl.309.213 of Schedule 2 to the Regulations; ·cl.309.221 of Schedule 2 to the Regulations; and ·cl.309.222 of Schedule 2 to the Regulations. Meena SripathyMember

Ratio Decidendi

Legal Principle Established

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