Poustchi (Migration)

[2019] AATA 1555

Poustchi (Migration) [2019] AATA 1555 (5 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Behrouz Poustchi

CASE NUMBER:  1716083

DIBP REFERENCE(S):  clf2013/295915

MEMBER:Hugh Sanderson

DATE:5 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·PIC 4009 for the purposes of cl.801.223 of Schedule 2 to the Regulations.

Statement made on 05 March 2019 at 1:18pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 – applicant failed to meet Public Interest Criteria 4009 (PIC 4009) – applicant intends to live permanently in Australia – parties are in a continuing relationship – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 801.223

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 on 5 July 2017 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 November 2013 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.223 because the delegate was not satisfied the applicant meant the criteria in Public Interest Criteria 4009 (PIC 4009). This requires, in part, that the applicant intend to live permanently in Australia.

   Background

4. The applicant was born in Iran and is a citizen of Canada. He is currently 63 years old. He was previously married and has two children from that relationship, Alexander who is currently 20 years old and Justine who is currently 27 years old. They both reside in Canada.

5. The sponsor of the applicant is Su Jung Lee. She was born in South Korea and is currently 43 years old. She is an Australian citizen. She has been married on two previous occasions and has a child to her first marriage, Suellen, who is currently 16 years old. She was sponsored by her second husband for a Partner visa which granted to her. She divorced her second husband in 2010.

6. The parties claimed that they first met each other in September 2012. They claim they started a de facto relationship on 1 February 2013. Their relationship was registered in Queensland on 8 December 2013.

7. The applicant was granted a subclass 820 Partner (Temporary) visa on 1 July 2014. The parties were married in Vancouver in Canada on 10 November 2014.

8. When providing information and support of the grant of the subclass 801 Partner (Residence) visa the applicant provided a statement where he claimed that he and the sponsor moved to Canada on 6 February 2015 to be able to support his mother who had been diagnosed with cancer. It was claimed that she had recently passed away and it was their intention to now to return to live in Australia. It was claimed that the sponsor and her daughter had been granted permanent residence in Canada in July 2015.

9. The Department wrote to the applicant on 23 February 2017 noting that it was a requirement for the grant of the visa that the applicant intends to live permanently in Australia. The applicant was requested to provide information and support of this criterion. The applicant provided a statement where he stated as follows:

   As indicated previously the reason for leaving Australia was to be with my mother in the last few years of her life. She has passed away and we are in the process of getting our lives together for return to Australia. The reason we have not returned to Australia to date is mainly that I have corporate contractual obligation to meet and government funded projects to complete, which are coming to an end.

   Our plans are to return to Australia between June 2017 and December 2017 and settle in Sydney as it has the technical resources to continue my work in network security. In addition, my wife has many friends in Sydney and thus would ease the transition to the new environment.

10. The delegate who considered the application noted the applicant had departed Australia in February 2015 and had not returned since then. The delegate found the applicant had failed to provide documentation in support of the application or provide the Department with a change in their contact details. The delegate found that as the applicant had not travelled to Australia since February 2015, a period of more than two years, they were not satisfied the applicant intended to live permanently in Australia and found the applicant did not meet PIC 4009. The delegate found the applicant did not meet the criteria in cl.801.223 and refused the application.

    Information to the Tribunal

11. The sponsor wrote to the Department on 24 July 2017 stating that she would like to withdraw the sponsorship of the applicant’s Partner visa. She claimed that they had been separated for a while and it would lead to a divorce. She claimed that the applicant had not been supporting her or her daughter.

12. The applicant returned to Australia on a subclass 601 Electronic Travel Authority visa on 23 July 2017 and, after applying for the review of the Department’s decision, departed Australia on 17 August 2017. The sponsor did not accompany the applicant when he returned to Australia. The applicant returned to Australia on 27 February 2019 holding a subclass 601 Electronic Travel Authority visa that was valid for a three month stay in Australia.

13. The sponsor returned to Australia on 24 January 2018 and departed again on 18 April 2018. She returned to Australia on 8 October 2018 and has remained in Australia since that date.

14. When the sponsor returned to Australia on 8 October 2018 she wrote to the Tribunal on 18 October 2018 to state that when she had previously written to the Department it was done impulsively and they had reconciled their relationship on 2 July 2018. She confirmed she wished to continue her sponsorship of the application.

15. The applicant appeared before the Tribunal on 5 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing.

16. The parties provided consistent information as to their plans for their future together in Australia. This included details of the work they would both be doing, the arrangements for the sponsor’s daughter and where they would be living. They provided information as to the period of separation they had and the reasons for that separation, including the frustration the sponsor felt living in Canada and her desire to return to live in Australia. They provided details of their continuing relationship including details of the support provided to the sponsor’s daughter and their contact while the sponsor is living and working in Australia.

17. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in the present case is whether the applicant intends to live permanently in Australia.

19. The applicant and the sponsor returned to live in Canada in February 2015 as the applicant’s mother was suffering from cancer and they wanted to be with her before she died. She died about a year after they returned to Canada. Over that time, the applicant established an IT business specialising in gaming and automotive cyber security so that the parties would have a continuing income while in Canada. After the death of his mother, the applicant continued to work on this business, however, the Tribunal accepts that it was the intention of the parties at that time to return to live in Australia.

20. The refusal by the Department of the applicant’s visa meant that he did not believe that he could do anything else apart from continuing living in Canada while the review of the Department’s decision was before the Tribunal. As he was required to earn an income and he believed that he could not do so on any visa in Australia he continued his work in Canada. He operates his business out of Vancouver by himself and has two employees working in Ottawa. He has contracts with organisations in Canada.

21. The applicant and the sponsor experienced a period of separation in their relationship. This, in part, was caused by the stress arising from the death of the applicant’s mother and the difficulties the parties had living in Canada. The sponsor was not able to get regular employment and was not happy with the weather and other environmental issues living in Canada. The parties were living separate and apart for about a 12 month period commencing in July 2017 and ending in July 2018.

22. The sponsor returned to Australia in October 2018 as she could not tolerate living in Canada any longer, particularly in winter, and has found work in the tourist industry in Australia. Although the sponsor lives in Australia and the applicant continues to reside in Canada their relationship is continuing. The sponsor’s daughter remains living with the applicant in Canada and it is planned that she will finish high school in Canada. The parties are planning to have a holiday together with the sponsor’s daughter in Spain.

23. The sponsor’s business is able to be transferred to be operated out of Sydney or Melbourne. He believes that he would be able to continue the contracts he does have with Canadian businesses from Sydney with the assistance of his employees in Ottawa in a manner similar to the way that the operation has worked with him based in Vancouver. He believes that he would have a number of business opportunities arising in Australia and also dealing with the international automotive industry.

24. Overall, the parties have provided detailed and consistent plans for their future together in Australia. The sponsor has made it abundantly clear that she does not wish to continue to reside in Canada for a number of reasons. Although the parties are in a continuing relationship, she is now living in Sydney and does not plan to spend any extensive time in Canada where the applicant and her daughter currently reside. The parties wish to live together in Australia.

25. The applicant has varies business skills which are easily transferable to work in Australia. He has been able to establish his own companies and been successful in obtaining various contracts to make his business profitable. The nature of the work makes it relatively easy for the business to be transferred from Canada to Australia. The applicant is confident that he would be able to easily transfer the business to Australia and continue to work on his current contracts and obtain new contracts while he is based in Australia.

26. For the above reasons, the Tribunal finds that the applicant intends to live permanently in Australia. The Tribunal finds that the applicant meets the requirements of PIC 4009 for the purpose of satisfying the criteria in cl.801.223.

27. 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 801 visa.

    DECISION

28. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·PIC 4009 for the purposes of cl.801.223 of Schedule 2 to the Regulations.

    Hugh Sanderson
    Member