1515476 (Migration)

[2016] AATA 3180

1515476 (Migration) [2016] AATA 3180 (3 February 2016)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Arfan Hussani

VISA APPLICANTS:  Ms Golsom Ibrahemi
Ms Fatima Hussaini
Ms Khatima Hussaini

CASE NUMBER:  1515476

DIBP REFERENCE(S):  OSF2009/093420 OSF2014/003401

MEMBER:Michelle Grau

DATE:3 February 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that all the secondary visa applicants meet the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·PIC 4007, 4009, 4020, 4021 for the purposes cl.309.323 of Schedule 2 to the Regulations

·Cl. 309.312, 309.321 and cl.309.322 of Schedule 2 to the Regulations

Statement made on 03 February 2016 at 12:02pm

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 September 2015 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 17 September 2009 as members of the family unit of the review applicant’s wife, who was the primary visa applicant. The primary visa applicant and her children were granted 309 visas on 16 June 2011.

3. However, on 16 June 2011 the delegate refused the secondary applicants (listed above) on the basis they did not satisfy cl. 309.311. This decision was reviewed by the Migration Review Tribunal (MRT as it then was) and on 26 June 2014 the tribunal remitted the application finding these secondary visa applicants met cl. 309.311.

4. On 7 September 2015, the delegate again refused to grant the visas to the secondary applicants on the basis that they did not meet health and other requirements, specifically PIC 4007, 4009 and 4021. The delegate found the secondary applicants did not meet 309.323.

5. The review applicant appeared before the Tribunal on 1 February 2016 to give evidence and present arguments. The review applicant was represented in relation to the review by his registered migration agent who attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the secondary applicants meet PIC 4007, 4009 and 4021.

8. The tribunal considers the delegate made an error by considering PIC 4021 as it only applies to subclass 309/110 visa applications lodged on or after 24 November 2012[1] and in this case the applications were lodged on 27 September 2009. The tribunal finds PIC 4021 is not applicable to the applicants.

   [1] Migration Legislation Amendment Regulation 2012(no.5)(SLI 2012 No. 256)

9. The delegate refused the applications because the applicants had not provided medicals.

10. On 29 January 2016 the agent provided submissions and documentation to the tribunal which included copies of the machine readable passports for the visa applicants, which were issued on 22 January 2016. The submissions stated the applicants undertook medical examinations on 7 September 2015 and updated Form 80s had been provided on 28 August 2015.

11. It was apparent to the tribunal from the agent submissions and department emails that the department had requested copies of passports, Form 80s, and medicals in March 2015, but due to an administrative error in the migration agent’s office they were not aware of this until the department’s follow up email in August 2015. While some of the documentation was provided, the application was refused on 7 September, and at that time cleared medical examination results had not been provided.

12. The department file also held updated From 80 made in August 2015 and noted that Afghan Tazkira translations, although originally requested, were no longer required.[2]

    [2] Email of 30 August 2015 from Senior visa officer

13. The tribunal noted at hearing that it did not have evidence the medical examinations had been completed or met. The tribunal noted a check of immigration systems on 5 January and 1 February had not found these details.

14. The review applicant informed that they had been completed on 8 September 2015 and he provided evidence of the HAP id and email correspondence about them.

15. After hearing the tribunal sought information from the Department health services directly based on the information provided at hearing.  The tribunal was informed the secondary applicants had completed medicals and they met the medical requirements. The tribunal therefore finds the secondary applicants meet PIC 4007.

16. Further, the tribunal accepts the applicants intend to live permanently in Australia with the review applicant and his wife and it accepts they could obtain support from them.  The family were a unit in Afghanistan and continue to want to be a family unit together and the review applicant and his wife have in the past and will continue to support them. The tribunal’s view is further reinforced by the review applicant’s continued endeavours to reunite the family over the last 6 years caused by delays and immigration decision refusals. The tribunal finds the applicants meet PIC 4009.

17. Further, given their passports, the tribunal is satisfied as to their identity and finds they meet PIC 4020(2A). Further, there is no suggestion or evidence that any false or misleading information or bogus documentation has been provided or visas have been refused on that basis. The tribunal is satisfied on the evidence before it that the secondary applicants meet PIC 4020 as a whole.

18. The tribunal notes a previous tribunal decision of 26 June 2014 (differently constituted) found the applicants met cl.309.311.

19. Department records show the main visa applicant, Fatima Haydari was granted a subclass 309 on 16 June 2011 and a subclass 100 on 25 June 2014. On the evidence before it, the tribunal considers the applicants continue to be members of the family unit at the time of decision, who made a combined application with the main visa applicant, who has satisfied the primary criteria and has been granted a 309 and now a 100 visa. Accordingly, the tribunal finds the secondary applicants meet cl. 309.321.

20. Further, based on the evidence before it the tribunal finds the sponsorship referred to in cl.309.213 includes the applicants. Therefore the applicants meet cl. 309.312. Further, the tribunal finds the sponsorship has been approved and is still in force. Therefore the applicants meet cl. 309.322

21. 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.

22. Given the length of the spousal relationship and children, and the grant of  100 visas to the main applicant in 2014, the tribunal also considers the applicants should be considered for the grant of subclass 100 visas.

    DECISION

23. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that all the secondary visa applicants meet the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·PIC 4007, 4009 and 4020 for the purposes of cl.309.323 of Schedule 2 to the Regulations and

    ·Cl. 309.312, 309.321 and cl.309.322 of Schedule 2 to the Regulations.

    Michelle Grau
    Member