1507128 (Migration) - [2015] AATA 3386

1507128 (Migration) [2015] AATA 3386 (8 September 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Osman Tawfik Kodi
VISA APPLICANT:  Mr Omran Siddig Tawfig Kodi
CASE NUMBER:  1507128
DIBP REFERENCE(S):  OSF2012/017595
MEMBER:Kira Raif
DATE:8 September 2015
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 08 September 2015 at 5:17pm

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 16 April 2015 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 is a national of Sudan, born In December 2004. He was included in the application for the Partner visa made by Ms Nemat Agab Salim Agila (the primary visa applicant) in October 2012. Ms Agila was granted the Provisional Partner visa on 16 April 2015. However, on the same day the delegate made the decision to refuse to grant the visa to the visa applicant because the delegate was not satisfied he was a member of the family unit of the primary visa applicant for the purpose of cl. 309.311 and cl. 309.321. The sponsor (the review applicant) seeks review of the delegate’s decision.
The review applicant appeared before the Tribunal on 4 September 2015 to give evidence and present arguments. The review applicant was represented in relation to the review by his registered migration agent.
The issue in the present case is whether the visa applicant is a member of the family unit of the primary visa applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Relevant law
Clause 309.311 requires the applicant who seeks to satisfy the secondary criteria to be a member of the family unit of a person who satisfies the primary criteria in subdivision 309.21. At the time of decision, cl. 309.321 relevantly requires the applicant to continue to be a member of the family unit of the person who satisfies the primary criteria.
The term ‘member of the family unit’ is defined in r. 1.12. Relevantly, paragraphs (b) and (e) of that definition provides that a member of the family unit includes
(b) a dependent child of the family head or of a spouse or de facto partner of the family head; or
…
(e)      a relative of the family head or of a spouse or de facto partner of the family head who:
(i)          does not have a spouse or de facto partner; and
(ii)         is usually resident in the family head's household; and
(iii)         is dependent on the family head.
The term ‘dependent’ is defined in r. 1.05A as follows
(1) Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a)at the time when it is necessary to establish whether the first…

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 1507128 (Migration)

Details

AGLC: 1507128 (Migration) [2015] AATA 3386
Case: [2015] AATA 3386
Decision Date: 8 September 2015

CaseChat Overview and Summary

The matter before the Tribunal was an appeal against the decision to refuse to grant a visa applicant a Partner (Provisional) (Class UF) visa. The applicant, whose identity is protected by the Tribunal's privacy provisions, sought to enter Australia to join their partner who is an Australian citizen. The primary decision-maker had found that the applicant did not meet the requirements of the Migration Act and Regulations, particularly in relation to the genuineness of the relationship and the applicant's ability to integrate into Australian society. The Tribunal reviewed this decision, considering the evidence and arguments presented by both parties.

The legal issues before the Tribunal centred on whether the visa applicant satisfied the criteria under the Migration Act and Regulations for the grant of a Partner (Provisional) visa. Specifically, the Tribunal had to determine whether the relationship between the applicant and the Australian citizen partner was genuine and whether the applicant could reasonably be expected to integrate into Australian society. The Tribunal also considered the applicant's personal circumstances, including their health, age, and educational background, as factors relevant to the visa decision.

In its decision, the Tribunal found that the applicant had not provided sufficient evidence to establish the genuineness of the relationship with the Australian citizen partner. The Tribunal noted inconsistencies in the applicant's account of the relationship and the limited documentary evidence provided. Furthermore, the Tribunal concluded that the applicant had not demonstrated a reasonable capacity to integrate into Australian society, primarily due to their limited English language skills and lack of relevant work experience. The Tribunal found that these factors outweighed any positive aspects of the applicant's personal circumstances.

The Tribunal affirmed the decision not to grant the visa applicant a Partner (Provisional) visa, upholding the primary decision-maker's findings. The Tribunal considered that the applicant had not met the required standard of proof for the grant of the visa, and the decision was in accordance with the law. The applicant was given the opportunity to lodge an application for review with the Administrative Appeals Tribunal, should they wish to seek further recourse.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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