How have we come to this? Geoffrey Heaviside is an Australian citizen, born and brought up here. He died in late January this year.
He is married to Rishi, a man of Nepalese heritage and ethnicity. They were married in South Africa.
His dying wish envisaged one of two scenarios: Rishi would come to Australia where he would be able to perform the funeral rites in accordance with Geoffrey’s wishes. Or that his body would be transported to Nepal, where Rishi is resident so as to perform the same funeral rites there.
Geoffrey, being of Australian citizenship and residence cannot have his body transported into Nepal. There is the matter of marriage equality not being recognised in that country as well. And the logical outcome would, therefore, be Rishi attending the funeral service performed here, in Melbourne.
And this then becomes the subject of the vagaries of Australian Home Affairs and Border Force quirks and foibles. There are many complex issues that go to the determination of Rishi’s status in the eyes of the Australian Authorities.
This is an excerpt from the decision record of the department:
“The applicant departed Australia on 29/07/2017 as an unlawful Bridging Visa E holder having overstayed his visa by more than 28 days. I therefore find that he is affected by the risk factor mentioned in subclause (4). His current application has been made within 3 years after his departure from Australia.
On 04/02/2020 the applicant was advised in writing that he is affected by this risk factor and is subject to an exclusion period. The applicant was invited to comment on these circumstances and the purpose of his current application, including whether any compelling or compassionate circumstances exist that would justify granting the visa.
The applicant was provided with 28 days to submit this information. The applicant responded on 06/02/2020 and acknowledged through his agent that he departed Australia in July 2017 as the holder of a Bridging Visa E that was granted more than 28 days after his last substantive visa ceased to be in effect, and that as a result, he is affected by the risk factor specified in PIC 4014 (4). Applicant has lodged a visitor visa application less than 3 years after his departure in order to attend the funeral of his partner as per the deceased’s last wish. Further documentations in form of statutory declarations from various people have been provided on 10/02/2020 and 11/02/2020.
We also acknowledge the receipt of a letter dated 11/02/2020 from Armstrong legal outlining further compassionate reasons for the applicant to travel to Australia. Their reasons for travelling to Australia on this occasion have been presented to an appropriate delegate. In this instance, the Delegate was not satisfied that the compassionate grounds outweigh the applicant’s lack of incentives to depart Australia. As such the PIC4014 waiver is declined.
Decision: Based on the evidence and information before me, I am not satisfied that the applicant meets Public Interest Criterion (PIC) 4014.”
Cutting to the chase the issue is this:
Geoff and Rishi formed a relationship some years ago. Rishi came out to Australia on a student visa to undertake English language studies. When the studies were over, he applied to do a pastry cook’s course. He was granted this visa. Unbeknownst to him, the visa he had from Nepal was for a maximum course period (at that time) of 40 weeks.
He overstayed that visa and after a series of decisions had a banning order placed upon him applying for another visa within a three year period.
And that is the crux of this matter. The legislation says the following:
(1) If the applicant is affected by the risk factor specified in subclause (4):
(a) the application is made more than 3 years after the departure of the person from Australia referred to in that subclause; or
(b) the Minister is satisfied that, in the particular case:
(i) compelling circumstances that affect the interests of Australia; or
(ii) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; justify the granting of the visa within 3 years after the departure.
Subclause 4014(1) requires that that a person affected by a risk factor cannot be granted a visa unless three years have passed since the departure from Australia, unless the applicant can demonstrate that there are:
- compelling circumstance affecting the interest of Australia; or
- compassionate or compelling circumstances affecting the interest of an Australian Citizen, Australian permanent resident or eligible New Zealand citizen justifying granting the visa within this three year period.
We have made same-sex marriages legal in this country. South Africa has embraced same-sex marriages since 2006. Rishi and Geoffrey were married in South Africa. Geoffrey’s dying wishes as specified in his will were that Rishi performs the funeral rites as appropriate for them in this country or Nepal.
It is not an option in Nepal.
Therefore, logic would suggest that Australia is the place to perform this funeral. So why is that not a 'compassionate or compelling circumstance' to allow Rishi to come here for a few days to undertake this funeral rite for his husband?
There are a number of charities in the LGBTIQ space that were administered by Geoffrey or with which he has some significant involvement. These charities are currently in a state of limbo awaiting Rishi’s arrival here (if possible).
One such charity listed this as its charter of service:
Empowering the poor to access food, education, housing, and employment support.
Establish social media connectivity.
Provide financial and legal counselling.
Advocate on health issues associated with gender minorities.
Provide victims with legal and medical support and access to safe housing.
Working with UNHCR.
Utilising self-help and local community based organisations.
Development and utilising on line tools related to suicide ideation counselling.
Surely we are better than this as a nation? We must do what we can to allow for the wishes of Geoffrey Heaviside to be addressed. One tourist visa for a short stay is not going to create an international incident.
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