2014446 (Migration) - [2022] AATA 137

2014446 (Migration) [2022] AATA 137 (20 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2014446

MEMBER:Margie Bourke
DATE:20 January 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the three visa applicants meet the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.311 and cl.309.321 of Schedule 2 to the Regulations.

Statement made on 20 January 2022 at 2:22pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – secondary visa applicants – dependents and members of the family unit – no employment – review applicant’s financial support for family – money transfers – primary applicant managed the financial affairs – applicants unmarried – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 360A, 376
Migration Regulations 1994 (Cth), rr 1.03, 1.05A, 1.12, 1.15; Schedule 2, cls 309.311, 309.321
CASES
Al Naqi v MIMA [2007] FMCA 874
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 25 August 2020 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The primary visa applicant [Ms A] applied for the visa on 30 June 2013 on the basis of her relationship with her sponsor, the review applicant. 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, if any, who are applicants for the visa need satisfy only the secondary criteria.
The three visa applicants in this review are all secondary visa applicants in the application. The primary visa applicant was granted a Subclass 309 visa and Subclass 100 visa on 28 September 2020, and is not part of the decision in this review. The Department’s decision record in relation to the three secondary visa applicants is dated 25 August 2020.
The delegate refused to grant the visa on the basis that the three visa applicants did not satisfy cl.309.311 because the delegate was not satisfied that the three visa applicants were the dependent children and members of the family unit of the primary visa applicant at the time of application.
The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the review applicant, the circumstances of the visa applicants, and the nature of the review. [Details deleted.] The Tribunal considered the matter and determined…

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 2014446 (Migration)

Details

AGLC: 2014446 (Migration) [2022] AATA 137
Case: [2022] AATA 137
Decision Date: 20 January 2022

CaseChat Overview and Summary

This matter concerned a review by the Tribunal of a decision relating to Partner (Provisional) (Class UF) visa applications made by three secondary applicants. The primary applicant managed the financial affairs of the applicants, who were unmarried. The review applicant sought to challenge the validity of a non-disclosure certificate issued by the Department under section 376 of the Migration Act 1958 (Cth).

The Tribunal was required to determine the validity of the section 376 certificate, specifically whether certain disclosed documents, including typed notes of telephone interviews and email correspondence between the review applicant's representative and the Department, were properly covered by the certificate. The Tribunal also needed to consider whether the Departmental assessments contained within the undisclosed documents were relevant to the review.

The Tribunal found the section 376 certificate to be partially invalid. It concluded that typed notes of telephone interviews and email correspondence were not properly subject to non-disclosure as they did not contain lawful methods for preventing, detecting, or investigating breaches of the law, nor would their disclosure prejudice such methods. The Tribunal was satisfied that the remaining folios, containing assessments by Departmental officers, were properly covered by the certificate. However, the Tribunal determined that these assessments were not relevant to its review, as it was required to form its own opinion. The Tribunal provided the relevant disclosed information to the review applicant, who accepted the Tribunal's conclusions regarding the certificate's partial validity and the disclosure of documents.

Consequently, the Tribunal remitted the applications for Partner (Provisional) (Class UF) visas for reconsideration by the Minister, with a direction that the three visa applicants meet the criteria specified in clauses 309.311 and 309.321 of Schedule 2 to the Migration Regulations 1994.

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 in relation to all three visa applicants.CONSIDERATION OF CLAIMS AND EVIDENCENondisclosure certificate The Department issued a signed s.376 certificate dated 20 December 2021 in relation to folios 293-298 and 313-348 on the Department file. The certificate recorded that disclosure of the information in these folios would be contrary to the public interest because it contained lawful methods for preventing, detecting and investigating breaches or evasions of the law which would, or be likely to, prejudice the effectiveness of those methods. The Tribunal is of the view that the certificate is partially invalid. Folios 325-328 and folios 295-297 (or parts thereof) are typed notes of telephone interviews between a Departmental representative and the primary visa applicant and the three secondary visa applicants on 20 January 2020 under the heading of “Interview: telephone interview with PA and SAs”. Folios 318-324 and part of 325, and folios 335-339 contain email correspondence between the review applicant’s representative and the Department. The Tribunal is not satisfied that disclosure of these folios would be contrary to the public interest for the reason specified, and is not satisfied that the documents would form the basis of a claim by the Crown on the right of the Commonwealth in a legal proceeding. The Tribunal concluded the s.376 certificate is not valid in relation to these folios or part folios. The Tribunal provided copies of these documents to the review applicant. The remaining folios contained repeats of the typed notes of the telephone interview and assessments by Departmental officers of the case under review. The Tribunal is satisfied that disclosure of the assessment notes and conclusions would be contrary to the public interest for the reason specified and could form the basis of a claim by the Crown in the right of the Commonwealth in a legal proceeding. For this reason the Tribunal is satisfied that the certificate is valid in relation to remaining folios. The Tribunal declined to exercise its discretion to disclose the remaining folios covered by the certificate. Further the Tribunal is of the view that the assessment of the information by Departmental officers is not relevant to the review. The Tribunal would form its own opinion and make its own assessment in relation to the information. The information that is relevant to this review had been disclosed to the review applicant. Therefore, the Tribunal was not required to put the gist of the information in these remaining folios to the review applicant. This was discussed with the review applicant’s representative at the commencement of the hearing. The review applicant’s representative accepted the Tribunal’s conclusions in relation to the partial validity of the certificate, the disclosure of the documents that had been made by the Tribunal, and the lack of any requirement to put the gist of the information in the remaining documents to the review applicant during the course of the hearing.Secondary visa applicants requirements

Decision

Reasons for decision

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.DECISION The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the three visa applicants meet the following criteria for a Subclass 309 (Partner (Provisional)) visa:·cl.309.311 and cl.309.321 of Schedule 2 to the Regulations.Margie BourkeMemberATTACHMENT - Extract from Migration Regulations 19941.15ASpouse(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.(2)If the Minister is considering an application for:(a)a Partner (Migrant) (Class BC) visa; or(b)a Partner (Provisional) (Class UF) visa; or(c)a Partner (Residence) (Class BS) visa; or(d)a Partner (Temporary) (Class UK) visa;the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).(3)The matters for subregulation (2) are:(a)the financial aspects of the relationship, including:(i) any joint ownership of real estate or other major assets; and(ii) any joint liabilities; and(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and(iv) whether one person in the relationship owes any legal obligation in respect of the other; and(v) the basis of any sharing of day‑to‑day household expenses; and(b)the nature of the household, including:(i) any joint responsibility for the care and support of children; and(ii) the living arrangements of the persons; and(iii) any sharing of the responsibility for housework; and(c)the social aspects of the relationship, including:(i) whether the persons represent themselves to other people as being married to each other; and(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and(iii) any basis on which the persons plan and undertake joint social activities; and(d)the nature of the persons’ commitment to each other, including:(i) the duration of the relationship; and(ii) the length of time during which the persons have lived together; and(iii) the degree of companionship and emotional support that the persons draw from each other; and(iv) whether the persons see the relationship as a long‑term one.(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

Ratio Decidendi

Legal Principle Established

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