RAJARATNAM (Migration)

[2019] AATA 2930

RAJARATNAM (Migration) [2019] AATA 2930 (3 June 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr PREMA RAJARATNAM

VISA APPLICANT:  Mr MERVYN VIJAYAKUMAR RAJARATNAM

CASE NUMBER:  1716336

DIBP REFERENCE(S):  BCC2016/2964872

MEMBER:Russell Matheson

DATE:3 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 03 June 2019 at 8:26am

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – sponsorship limitation – holder of Subclass 143 (Contributory Parent) visa – compelling circumstances – family reunion – conscious decision to remain in Sri Lanka – mother’s ill health – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20KA; Schedule 2, cl 309.222

CASES
Babicci v MIMIA [2005] FCAFC 77

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 7 July 2017 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) Subclass 100 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 6 September 2016. The delegate refused to grant the visa on the basis that cl.309.222 of Schedule 2 to the Regulations was not met because the delegate was not satisfied that the sponsorship requirements had been met.

3. The sponsor (review applicant) appeared before the Tribunal on to give evidence and present arguments. The Tribunal also received oral evidence from the applicant and his daughter. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

4. The review applicant was represented in relation to the review by her registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has before it the Department of Immigration’s (the Department) file relating to the applicant; its own file; and a copy of the Department decision provided by the sponsor to the Tribunal.

7. The evidence the parties and witness provided at the Tribunal hearing is recorded throughout this decision record.

   ISSUE

8. The issue in the present case is whether the sponsorship requirements are met.

9. To be granted a Subclass 309 visa, a person needs to meet cl.309.222 of Schedule 2 to the Regulations. This requires that the applicant be sponsored by their spouse and that their spouse is an Australian citizen, permanent resident or eligible New Zealand citizen and that sponsorship, has been approved by the Minister.

10. Regulation 1.20KA limits the Minister’s discretion to approve sponsorships, this regulation states:

    Reg 1.20KA    Limitation on approval of sponsorship—partner (provisional or temporary) or prospective marriage (temporary) visas

    (1)  This regulation applies if:

    (a)  a person is granted a specified visa on or after 1 July 2009; and

    (b)  the person seeks approval to sponsor the relevant applicant on or after 1 July 2009; and

    (c)  the person was the spouse or de facto partner of the relevant applicant on or before the day the specified visa was granted to the person. 

    (2)  The Minister must not approve sponsorship by the person of the relevant applicant within 5 years after the day when the person was granted the specified visa.  

    (3)  Despite subregulation (2), the Minister may approve sponsorship by the person of the relevant applicant:

    (a)  if the relevant applicant had compelling reasons, other than reasons related to his or her financial circumstances, for not applying for a specified visa at the same time as the person applied for his or her specified visa; or

    (b)  if:

    (i)  the relevant applicant applied for a specified visa at the same time as the sponsor; and

    (ii)  the relevant applicant withdrew the application for the specified visa before it was granted; and

    (iii)  the relevant applicant had compelling reasons, other than reasons related to his or her financial circumstances, for withdrawing the application for the specified visa.

    4)  In this regulation:

    relevant applicant means the applicant for:

    (a)  a Partner (Provisional) (Class UF) visa; or

    (b)  a Partner (Temporary) (Class UK) visa; or

    (c)  a Prospective Marriage (Temporary) (Class TO) visa.

    specified visa means:

    (a)  a Subclass 143 (Contributory Parent) visa; or

    (b)  a Subclass 864 (Contributory Aged Parent) visa.

    Are the sponsorship requirements met?

11. Regulation 1.20KA states that no sponsorship for this class of visa can be made a within five years after the day the sponsor was granted the specified visa. The applicant’s sponsor was granted a Subclass 143 (Contributory Parent) visa on 9 February 2016. This precludes the sponsor from sponsoring their partner or fiancé for a Partner or Prospective marriage visa for five years from the day the sponsor was granted their permanent contributory parent visa. This restrictions can be waived if the relevant applicant had compelling reasons, other than reasons related to his or her financial circumstances, for not applying for a specified visa at the same time as the person applied for his or her specified visa.

12. The Tribunal finds that the limitation in r.1.20KA applies because the sponsor was granted a Subclass 143 (Contributory Parent) visa in (February 2016); therefore the five year limitation applies.

13. The Tribunal, on the evidence, finds that the sponsorship limitation applies in the present case to preclude approval of the sponsorship unless the Tribunal is satisfied that there are compelling reasons affecting the applicant. Additionally, the test is “compelling reasons, other than reasons related to his or her financial circumstances, for not applying for a specified visa at the same time as the person applied for his or her specified visa”.

    Are there compelling circumstances affecting the sponsor?

14. The expression ‘compelling circumstances’ is not defined in the legislation and has not been considered in the context of r.1.20KA sponsorship limitations. However, judicial consideration of the expression ‘compelling circumstances’ in the context of the r.1.20J sponsorship limitation indicates that the Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: or are ‘so powerful that they lead the [Tribunal] to make a positive finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77.

15. The applicant and sponsor were requested to provide reasons for the waiver of the sponsorship limitation by the Department at the time of the visa application and at the Tribunal review hearing.

16. The applicant responded to the Department that he planned to migrate with the sponsor in early 2014 but when this information was communicated to his elderly mother she requested that he delay his decision to permanently migrate to Australia. Similarly at the Tribunal hearing the applicant, sponsor and their daughter said that the applicant had made a vow to his mother to remain in Sri Lanka to care and support her while she was alive. The applicant and sponsor both informed the Tribunal that the applicant’s mother was in reasonably good health when the sponsor applied to migrate to Australia in January 2014 and her health deteriorated significantly in 2016.

17. Also in response to the Department the applicant stated that his two brothers did not have much contact with their mother as one lived in Canada and one was sick, therefore they could not care for her. The applicant reiterated these comments at the Tribunal hearing. The Tribunal accepts the applicant’s brothers were not in a position to help care for their mother.

18. Also in response to the Department the applicant claimed that he needed to remain in Sri Lanka to finalise his property transaction until his son settled down in Dubai. Similarly the applicant reiterated these comments at the Tribunal hearing. There is evidence before the Tribunal in a statement made by the applicant (DF folio 110) that the applicant’s son was married in June 2014, obtained his visa to migrate to Australia in September 2015 and he sold his property in 2015.  

19. The applicant provided a copy of the delegate’s decision record to the Tribunal at the hearing. The Tribunal informed the applicant that it would discuss issues of concern raised by the delegate in relation to his visa application. The applicant also provided a statement to the Tribunal addressing the concerns raised by the delegate regarding the care and support  of his mother:

20. Issues raised by the delegate but not limited to were;

    ·     The applicant was living at a different address to his mother: and

    ·     The  mother’s grandson was the informant on her death certificate and not the applicant; and

    ·     Why the applicant lodged his visa application before the death of his mother; and

    ·     Why the applicant did not lodge his visa application at the same time of the sponsor; and

    ·     The applicant provided no proof of the sale of his property in Sri Lanka.

21. The applicant provided documentation of the sale of his property in Sri Lanka to the Tribunal dated March 2015. The applicant further gave evidence that after the sale of the property he live at a property in Sri Lanka owned by his son who lived in Dubai. He further stated that he rented a property for his mother so she could live next door to his sister in Sri Lanka. The applicant stated that during the day he had to work and could not support and care for her during working hours. The applicant said that his sister could not look after his mother by herself because her husband was ill and the rest of her family worked. The applicant said that he and his sister decided to hire a maid to help care for his mother sometime in 2016. The applicant provided evidence that he had flexible working hours and he would visit his mother to feed her, take her to the hospital and medical appointments because he was the only one who owned a car. The sponsor gave evidence to the Tribunal that the applicant’s sister supervised the maid who helped look after the applicant’s mother. She further stated that the applicant was the main carer for his mother. The Tribunal questioned the applicant and sponsor about who cared for the applicant’s mother of an evening. The parties stated that the maid took care of her during the evening and the applicant would sometimes stay at the house with his mother. Based on the evidence provided the applicant’s sister and maid provided the bulk of the care required for the applicant’s mother.    

22. The Tribunal questioned the applicant and sponsor about why the grandson was listed as the informant on the applicants mother‘s death certificate. The sponsor replied that the applicant’s mother died at home and he was very sad and that he had sent his sisters son to arrange the funeral and obtain the death certificate. The applicant in his statement provided to the Tribunal states that he was distressed and couldn’t concentrate on the funeral formalities and as a result he requested the grandson to make the arrangements. He further stated that he signed the cause of death certificate’ and in Sri Lanka it is permitted to obtain a death certificate by any immediate family member provided the relationship is proved through valid identity and that is why the grandson’s name is on the death certificate.

23. The Tribunal queried why the applicant had applied for his partner visa before the death of his mother. The sponsor gave evidence that the applicant’s mother had become ill in 2016 with dementia and did not have long to live. She further stated that she made enquiries with her lawyer as to how long it would take to have the visa approved. The applicant submitted that a couple of months prior to his mother’s death she was suffering from dementia and was in a very bad condition and her doctor had indicated to him she would not live very long. He further stated that he had spoken to his lawyer through his wife who advised that the duration for processing the visa was a minimum of one year and he thought it was best to make the application at the earliest opportunity.

24. The Tribunal queried the applicant as to why he did not make his contributory parent visa application at the same time as his wife in 2014. The applicant responded that he was the only one that owned a car who could take his mother to the hospital or doctor’s appointments. In his statement provided to the Tribunal the applicant states that he did not make the application at the same time as his wife because his mother was in good health and he didn’t have a reason to apply for a visa. He further states that he had given a vow to his mother that he would not leave her permanently to move to Australia while she was alive. He also states that despite the long waiting period for the visa he thought his mother would live for a number of years and did not expect her health to deteriorate as quickly as it did and that’s why he did not make an application at the same time as the sponsor.

25. The Tribunal queried the applicant’s daughter as to why her father did not relocate to Australia at the same time as her mother. She stated that her father had made a vow to his mother to remain in Sri Lanka and he could not say no because he was close to his mother. She further stated this closeness was because the applicant’s mother had raised him on her own since he was seven years of age. The Tribunal then questioned the daughter (witness) why she had made a statement (form 888) that she had insisted that her mother migrate to Australia and her father could not come because he had to wind up the business. The applicant’s daughter responded that it was one of the reasons and that he had also stayed behind because her brother was not married and he had to sell the house. The Tribunal then asked the applicant if selling the business was a reason for not migrating to Australia at the same time as his sponsor. The applicant gave evidence that the primary reason he did not apply at the same time was his mother and that he had to sell his property in Sri Lanka and his son was not married and he had to organise a wife for him. He further stated that the business was in his wife’s name and was not a reason to remain in Sri Lanka. He further stated that the business was still operating and had not been sold. He also said that he received a commission selling furniture for dealers and worked flexible hours.

26. The Tribunal asked the applicant if he could provide compelling reasons for the waiver of the sponsor limitation. The applicant responded that he wants to reunite with his family who are now living in Australia. The applicant further stated that his wife, daughter and son are living in Australia and he has three grandchildren aged one, two and ten years of age that he is very attached to. The Tribunal accepts that it is a reasonable expectation that the applicant wishes to re-unite with his family in Australia. The Tribunal does not find this is a compelling reason to waive the sponsor limitation as he made a conscious decision to remain in Sri Lanka for a number of differing reasons and ultimately had the choice to migrate to Australia at the same time as his sponsor.

27. The applicant’s representative submitted that compelling reasons exist to apply the waiver of the sponsor limitation because the main factor was his mother because no other family members were in a position to look after her and the applicant had made a vow to his mother to stay in Sri Lanka while she was alive. He further stated that the applicant had to find a partner for his son and sell his property and had told his wife to migrate to Australia because he believed his mother would live for a number of years but he was wrong. The representative submitted that the applicant only applied for his visa when he was told by his mother’s doctor that she was terminally ill and she would not live long and that she passed away 30 days after he applied for his visa. He also submitted that the applicant believed his mother would live for a number of years but he was wrong.

28. The applicant and sponsor have given evidence orally and provided statements that the applicant’s mother was in good health when the sponsor applied for her Subclass 143 (Contributory Parent) visa in January 2014 and her health deteriorated rapidly in 2016. When considering the long waiting period for contributory parent visas the applicant had the facility of visiting his mother whenever needed and lodging a contributory parent application with the sponsor would not have hindered any intentions to do so. The applicant gave evidence that his primary decision for not lodging a contributory parent application with the sponsor in January 2014 was because he made a vow to his mother that he would stay in Sri Lanka to care and support her while she was alive. He also said that he had to sell property and arrange his son’s marriage. The Tribunal accepts that it is reasonable that the applicant’s intention was to support and care for his mother and be physically present in Sri Lanka for that purpose. The applicant gave evidence that he moved his mother to live next door to his sister in Sri Lanka so she could help care for her. The applicant provided evidence that he and his sister employed a maid to help care for their mother because his sister could not do it on her own. Based on the evidence provided by the applicant and sponsor it appears that the maid provided the main care for the applicant’s mother when she became seriously ill in 2016, caring for her during the day and at night, supervised and assisted by the applicant’s sister with the applicant providing some limited care. Therefore, it appears that the care provided to the applicant’s mother was a shared arrangement between the applicant, his sister and the maid.

29. Based on the evidence presented, the Tribunal is not satisfied the applicant’s ailing mother was the main reason for not lodging a contributory parent visa with the sponsor in 2014. The applicant and sponsor have provided evidence that his mother was in good health at the time of the visa application. The Tribunal is of the view the applicant has made a calculated gamble anticipating that his mother would live longer than the five year sponsor limitation and this would not be part of the equation when he applied for his visa at a later date. The Tribunal accepts that he wanted to sell his property whilst physically in Sri Lanka and arrange a wife for his son living in Dubai. The Tribunal is not satisfied that the applicant could not have made arrangements to attend to either of these issues, selling his property or making arrangements for a partner for his son, if he had applied for his contributory parent visa in 2014 with the sponsor and migrated to Australia.     

30. The Tribunal has considered all the applicant’s claims and is not satisfied they constitute compelling reasons that prevented him from migrating with his sponsor.

31. In summary, the Tribunal does not consider that the applicant had compelling reasons, other than reasons related to his financial circumstances, for not applying for the Subclass 143 visa at the same time as the sponsor. Therefore the Tribunal is unable to waive the limitation on approval of sponsorship imposed under r.1.20KA.

32. Therefore the applicant does not meet the requirements of cl.309.222 of Schedule 2 to the Regulations.   

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

    DECISION

34. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    Russell Matheson
    Member