1932713 (Migration) - [2022] AATA 3955

1932713 (Migration) [2022] AATA 3955 (27 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Justin Moyes
CASE NUMBER:  1932713
MEMBER:Meena Sripathy
DATE:27 September 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.211 of Schedule 2 to the Regulations ; and
·cl.309.221 of Schedule 2 to the Regulations; and

the second and third named visa applicants meet the following criteria:
· cl.309.311 of Schedule 2 to the Regulations; and
· continue to be members of the family unit of the visa applicant for the purposes of cl.309.321 of Schedule 2 to the Regulations.

Statement made on 27 September 2022 at 11:32am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – long-term marriage in home country – one meeting in third country since sponsor’s departure – exclusivity of relationship – sponsor’s relationship with another woman in Australia now ceased – regular financial support – members of family unit – young adult children dependent on applicant and sponsor – long delay in processing application – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A(1), 1.12, 1.15A(3), Schedule 2, cls 309.211(2), 309.221, 309.311, 309.321
CASES
He v MIBP [2017] FCAFC 206
Huynh v MIMA [2006] FCAFC 122

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 19 September 2019 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The first named visa applicant (the visa applicant) applied for the visa on 24 June 2013 on the basis of her relationship with her sponsor, ([the review applicant]). The second and third named visa applicants are the daughters of the applicant and sponsor and applied on the basis of their membership of the applicant’s family unit. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.221 because the delegate was not satisfied that the applicant and sponsor continued to be in a spouse relationship at the time of the delegate’s decision. The delegate was not satisfied the…

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 1932713 (Migration)

Details

AGLC: 1932713 (Migration) [2022] AATA 3955
Case: [2022] AATA 3955
Decision Date: 27 September 2022

CaseChat Overview and Summary

This matter concerned an appeal by a sponsor against a decision by the Migration Review Tribunal regarding a Partner (Provisional) (Class UF) visa, subclass 309. The primary issue was whether the applicant had demonstrated a genuine and continuing relationship with her sponsor, who was an Australian permanent resident. The applicant, who resided in Pakistan, had been married to the sponsor since [Year 5]. The sponsor had departed Pakistan in 2011 to seek protection in Australia and had not seen the applicant since.

The Tribunal was required to determine if the relationship between the applicant and sponsor was genuine and continuing, considering the long separation and limited contact. Additionally, the Tribunal had to assess whether the applicant's young adult children qualified as members of the family unit, specifically whether they were dependent on the applicant and sponsor for financial support to meet their basic needs. The Tribunal also considered evidence of the sponsor's past relationship with another woman in Australia and the applicant's awareness of this.

The Tribunal found that while the sponsor had admitted to a relationship with another woman in Australia, this relationship had ceased and the visa applicant was aware of it. The Tribunal accepted that the applicant and sponsor had a long-term marriage in their home country and had provided evidence of regular financial support and communication. Crucially, the Tribunal determined that the applicant's two adult daughters, who were studying and living with her in Pakistan, were dependent on her for financial support for their basic needs, especially given the dangerous security situation in Quetta.

Consequently, the Tribunal concluded that the applicant met the criteria for the visa, including being in a genuine and continuing relationship with the sponsor and having dependent children who were members of the family unit. The Tribunal remitted the matter for reconsideration, indicating that the decision under review was not to be affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEEvidence before the Department The visa applicant is a married woman, born in Quetta Pakistan in [Year 2]. She is currently [Age 1] years old. She declares in the application that she has a father and two daughters, born in [Year 6] and [Year 8], residing in Pakistan and a son, born in [Year 7], residing in Australia. She is educated to secondary school level, completed year 12. She has never been employed in a paid job. She is sponsored by her husband, the review applicant, who was born in [Year 1] and is now [Age 2] years old, and an Australian permanent resident. The review applicant has parents and a sister residing in Pakistan. The parties state that they met in March [Year 3] in Quetta, committed to a shared life together in August [Year 4] and married on [Date, Year 5]. They lived together until the review applicant fled Pakistan to seek protection in Australia in 2011. The visa applicants indicate they have been outside their country to [Country 1] for the purposes of pilgrimage in April [Year 9] and November [Year 10]. The visa applicant provides two addresses in Quetta Pakistan, one from birth until marriage, and the second from marriage in [Year 5] to the current time. In addition to identification documentation, the visa applicant submitted with the application a marriage certificate, birth certificates for the children, a family certificate from the Pakistan Government, evidence of phone calls between the parties, two Form 888 Statutory Declarations dated 20 June 2013 by [Mr A] and [Mr B] who are long term family friends of both parties, and evidence of financial transfers. The visa applicant and sponsor each submitted a statement of the relationship, setting out when and how they met and the history of the relationship. A further Form 888 Statutory Declaration by [Mr C] dated 30 May 2019, also a long term friend of the review applicant, was subsequently provided. On 13 June 2019, the visa applicant’s then representative submitted further evidence, including two affidavits from Pakistani witnesses confirming the circumstances and status of the secondary witnesses, and photographs of the sponsor’s son’s recent visit to his mother and sisters in [Country 1]. An explanation was provided for the sponsor’s inability to travel due to work commitments; his parents in Pakistan had since passed away, and he is unable to travel to Pakistan because he has a protection visa. On 19 June 2019 an interview was conducted with the sponsor and visa applicant by telephone with an officer of the Department. Notes of these interviews are included in the Department file.[1] During the interview the sponsor was asked about the inception of the relationship and marriage and the children. He was questioned about financial transfers he has made to Pakistan and travel since he has been here. The sponsor disclosed that he had only seen the visa applicant on one occasion in 2012 (sic) and did not accompany his son to [Country 1] in 2018 when he went to visit the visa applicants. The sponsor admitted he had travelled to [Country 2] with another woman, named [Ms D], whom he then admitted was his girlfriend. The relationship lasted about two years but he claimed it was now over. He said the visa applicants were aware of this woman and the nature of their relationship. In her interview, the visa applicant said she has not seen the sponsor since he left Pakistan to go to Australia and that she was not aware of any other person the review applicant was involved in a relationship with in Australia.[1] [Reference], folios 386-393

Decision

Reasons for decision

Therefore the visa applicant meets cl.309.211 and cl.309.221. Secondary visa applicants – members of the family unit at time of application and time of decision – cl 309.311 and cl. 309.321 On the evidence before it, the Tribunal accepts that the second named visa applicant was [Age 4] years old at the time of application and is now [Age 3] years old. The third named visa applicant was [Age 5] years old at time of application and is now [Age 6] years old. Evidence is before the Tribunal that the second named visa applicant completed her secondary school education in [Year 11] and was, up to 2019 studying for a Bachelor of [Subject]. The evidence of the third named applicant is that she ceased study prior to completing secondary school. Both applicants claimed that they ceased study due to the dangerous security situation in Quetta. The Tribunal observes that their claims are supported by country information of bomb attacks and concerns about security for members of the Hazara minority in Quetta in this period.[2] [2] See for example, Pakistan Hazara minority protests after bombing in Quetta - BBC News; Fear and Loathing in Balochistan – The Diplomat Clause 309.311 and cl. 309.321 require the secondary visa applicants be ‘members of the family unit’ of the visa applicant. Member of the family unit is defined in r.1.12 to include dependent children. The Tribunal accepts the second and third named visa applicants are the children of the visa applicant. The issue is whether they are her ‘dependent children.’ Regulation 1.03 defines a ‘dependent child’ of a person as a child who has not turned 18 years or has turned 18 and is ‘dependent’ on that person. The term ‘dependent’ is defined in r.1.05A. It requires that at the relevant time, and for a substantial period immediately before that time, the person who is claiming to be dependent (the ‘first person’) must be wholly or substantially reliant on the other person for financial support to meet their basic needs for food, clothing and shelter. Further, the first person’s reliance on the other person must be greater than their reliance on any other person or source of financial support to meet those basic needs: r.1.05A(1)(a)(ii) and (ii). Alternatively, the first person must be wholly or substantially reliant on the other person for financial support because they are incapacitated for work to the total or partial loss of their bodily or mental functions: r.1.05A(1)(b). Relevantly, the terms of r.1.05A(1) do not carry with them any implication of necessity or lack of choice. The question is whether as a matter of fact, the first person is relying on the other person for support: Huynh v MIMA [2006] FCAFC 122 at [44]. At time of application, the Tribunal finds, on the evidence before it, the second named visa applicant, was [Age 4] years old, studying and living with the visa applicant on whom she was wholly reliant for financial support for food, clothing and shelter. There is no evidence that she had any other source of financial support. Therefore the Tribunal is satisfied that she was a member of the family unit of the visa applicant at time of application and met cl.309.311.

Ratio Decidendi

Legal Principle Established

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