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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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 that the conduct of the hearing by video would allow the review applicant the opportunity to give evidence and present arguments, and would allow the Tribunal to assess the evidence before it and conduct a fair and effective hearing. The Tribunal noted that the review did not involve an extensive amount of paperwork or documents to be put to the review applicant during the hearing. The Tribunal was cognisant of the restrictions in availability for in-person hearings due to the covid-19 pandemic. For all these reasons the Tribunal considered it was appropriate that the hearing in this matter be conducted by video.

6. The matter was initially listed for hearing on 22 December 2021. The review applicant attended the hearing by video with his representative and his spouse. The hearing was postponed because the Tribunal had received a s.376 certificate dated 20 December 2021 issued by the Department, and the Tribunal was of the view that the review applicant should have a reasonable time to consider the certificate. Further the review applicant had applied for disclosure pursuant to s.360A of the Act on 14 December 2021, the Tribunal had not been able to comply with this request prior to the hearing due to the short timeframe, and the Tribunal was of the opinion that the review applicant should have the opportunity to receive and consider the requested documents prior to the hearing.

7. The review applicant appeared before the Tribunal by video on 20 January 2022 to give evidence and present arguments. The review applicant attended by video with his representative and his wife. The Tribunal also received oral evidence from the review applicant’s wife. The hearing was conducted with the assistance of an interpreter in the English and [specified] languages.

8. The review applicant was represented in relation to the review.

9. 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 EVIDENCE

   Nondisclosure certificate

10. 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.

11. 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.

12. 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.

13. 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

14. Cl.309.311 criteria is to be satisfied at the time of application and requires that the visa applicant is a member of the family unit of and made a combined application with, a person who satisfies the primary criteria in the Subdivision 309.21.

15. Cl.309.321 criteria is to be satisfied at the time of decision, and requires the visa applicant either (a) continues to be a member of the family unit of the person who, having satisfied the primary criteria, is the holder of a Subclass 309 visa (the person who satisfies the primary criteria); or (b) is a person to whom each of the following applies: (i) made a combined application with the person who satisfies the primary criterion; and (ii) subsequent to the combined application being made, the person was found by the Minister not to be a member of the family unit of the person who satisfies the primary criteria; and (iii) subsequent to the person who satisfies the primary criteria being granted a Subclass 309 visa and Subclass 100 visa - the Tribunal found the person to be a member of the family unit of the person who satisfies the primary criteria.

16. Based on the applications for the visa, I am satisfied that the three visa applicants made a combined application with the primary visa applicant [Ms A].

17. Based on the notification of the grant of a partner visa dated 28 September 2020, I am satisfied that [Ms A] was determined by the Department to be a person who satisfies the primary criteria in Subdivision 309.21, and was granted a partner Subclass 100 visa.

18. Based on the decision records dated 25 August 2020 I am satisfied that the three visa applicants were found by the Minister not to be members of the family unit of [Ms A].

19. Based on the decision records dated 25 August 2020, I am satisfied that the Department found the three visa applicants did not meet the requirements of cl.309.311.

20. For the above reasons I am satisfied that at the time of application, the three visa applicants made a combined application with [Ms A] who is a person who satisfies the primary criteria in Subdivision 309.21. To determine whether the three visa applicants meet the requirements of cl.309.311, the Tribunal must decide whether the three visa applicants are members of the family unit of the primary visa applicant, [Ms A].

21. For the above reasons I am satisfied that the three visa applicants made a combined application with the primary visa applicant, [Ms A], who is a person who satisfies the primary criteria, and subsequent to the combined application being made the three visa applicants were found by the Minister not to be a member of the family unit of the primary visa applicant. To determine whether the three visa applicants meet the time of decision requirements of cl.309.321(b), the Tribunal must decide whether the three visa applicants are members of the family unit of the primary visa applicant.

22. The definition of members of the family unit in r.1.12, is the definition that applied at the time of application which is 30 June 2013. R.1.12(1)(b) defines a member of the family unit as the dependent child of the family head or spouse or partner of the family head. Dependent child is defined in r.1.03, and means the natural or adopted child, or stepchild, or the person (other than a child who has a spouse or is engaged to be married) being a child who (a) has not turned 18; or (b) has turned 18 and (i) is dependent on that person; or (ii) is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

23. I am satisfied based on the [identity documents] and passports provided, and the consistent information in the application forms and written and oral evidence, that the three visa applicants are the biological children of the review applicant and the primary visa applicant. I am satisfied based on the information recorded in the [identity documents] and the passports of the three visa applicants, that the visa applicant [Applicant A] was born on [date], and was therefore aged [age] at the time of application and is aged [age] at the time of this decision. I am satisfied based on the information recorded in the [identity documents] and the passports of the three visa applicants that the visa applicant [Applicant C] was born on [date], and was therefore aged [age] at the time of application and is aged [age] at the time of this decision. I am satisfied based on the information recorded in the [identity documents] and the passports of the three visa applicants that the visa applicant [Applicant B] was born on [date], and was therefore aged [age] at the time of application and is aged [age] at the time of this decision.

24. I have considered all the evidence provided in relation to this matter, including oral evidence at the hearing from the review applicant, his wife and the three visa applicants. I am satisfied that the review applicant and his wife and the three visa applicants resided in [City 1, Country 1], and the review applicant left to migrate to Australia and arrived here 10 years ago. I am satisfied that the review applicant left his wife [amount] for the support of his family. I am satisfied that the review applicant’s wife, the primary visa applicant, [Ms A] ran out of money, and accrued debt at the local shop and borrowed money from a neighbour. I accept the primary visa applicant’s evidence that she did not know if her husband would survive the journey to Australia. I am satisfied that the review applicant had employment in [City 1] before he departed for Australia. I accept his evidence that it was dangerous, because [members of their ethnic group] were targeted, and he had to cover his face for his protection when he left his home to go to work. I accept the review applicant had not obtained employment in Australia at the time of application for the visa and had not provided financial support for his family at the time of application for the visa.

25. I am satisfied based on the evidence of the review applicant and his wife and the three visa applicants, that the three visa applicants have not obtained employment in [City 1] at any time. I accept that [Applicant A] has never attempted to obtain employment, and has undertaken study. I accept that [Applicant B] was a good student, but has been severely impacted by a bomb blast which has left him with a speech impediment, and psychological effects which include that he suffers severe anxiety and nightmares. I give weight to the medical report provided as well as the oral evidence of witnesses, and the evident speech impediment when this visa applicant gave his evidence, when making this finding. I accept that [Applicant B] is significantly impacted by this condition, and is protected by his family. I accept that [Applicant C] was not a good student, and had difficulty remembering what he had learnt in class. I accept that neither [Applicant B] nor [Applicant C] have any work experience, or contacts to obtain employment. I accept it is very difficult for a refugee in [City 1] to obtain work. I accept the situation for [their ethnic group] in [City 1] is unpredictable and difficult. I am satisfied that the three visa applicants have not obtained employment or any other means of independent financial support for themselves.

26. I am satisfied based on the evidence of the review applicant, his wife and the three visa applicants that for the last seven years the review applicant has worked on a farm and has consistently provided money for the support of the family in [City 1]. I am satisfied that until the review applicant’s wife arrived in Australia, the review applicant would send the financial support to her. I am satisfied that after the review applicant’s wife arrived in Australia, the review applicant has sent the money in the name of either of his two sons. I am satisfied that when the review applicant’s wife lived in [City 1], she managed the financial affairs of the household, and this role is now undertaken by her daughter, the visa applicant, [Applicant A].

27. I am satisfied based on the evidence of the review applicant, his wife and the three visa applicants, that all three visa applicants are single. I am satisfied that all three visa applicants are not engaged to be married, and have never been engaged to be married. I am satisfied that all three visa applicants do not have a spouse, and have never had a spouse.

28. In the case of the visa applicant [Applicant B], at the time of application he was [age] years of age. I am satisfied that he was the dependent child, being the natural child of the primary visa applicant, [Ms A]. I am satisfied that at the time of application he did not have a spouse and was not engaged to be married and had not turned [age] years of age. I am satisfied that the time of application, the visa applicant [Applicant B] was the dependent child within the meaning of r.1.03, and was a member of the family unit of his mother, the primary visa applicant, within the meaning of r.1.12(1)(b).

29. I am satisfied that in the matter of the two visa applicants, [Applicant A] and [Applicant C], at the time of application they were the natural children of the primary visa applicant, [Ms A]. I am satisfied that at the time of application, they did not have a spouse and were not engaged to be married. I am satisfied that at the time of application both [Applicant A] and [Applicant C] had turned 18. There is no evidence before me that either [Applicant A] or [Applicant C] were incapacitated for work due to the total partial loss of their bodily or mental functions, and therefore do not meet the definition of dependent child in r.1.03(b)(ii). I am satisfied that at the time of application the only source of financial support for all their needs was provided by their mother, the primary visa applicant. The source of the money for the financial support provided by their mother was the [amount] left by the review applicant, the credit arrangement their mother made when buying food at the shop, and the loans their mother made with neighbours for their survival. I am satisfied based on the evidence before me that there was no other source of financial support for these two visa applicants at the time of application except through their mother.

30. When considering an assessment of whether the visa applicants meet the requirements of r.1.05A, I have considered a substantial period to be a period of 12 months. I am satisfied that both [Applicant A] and [Applicant C] were, at the time of application and for a substantial period immediately before that time, wholly or substantially reliant on [Ms A] for financial support to meet their basic needs for food, clothing and shelter. Further I am satisfied that both [Applicant A’s]  and [Applicant C’s] reliance upon [Ms A] was greater than their reliance on any other person or source of support, for financial support to meet their basic needs for food, clothing and shelter. I am therefore satisfied that at the time of application [Applicant A] and [Applicant C] were dependent upon the mother within the meaning of r.1.05A. Therefore I am satisfied that [Applicant A] and [Applicant C] are dependent children within the meaning of r.1.03(b)(i), and members of the family unit of the primary visa applicant within the meaning of r.1.12(1)(b).

31. For the above reasons I am satisfied that the three visa applicants are members of the family unit of, and made a combined application with, the primary visa applicant, [Ms A], who is a person who satisfies the primary criteria in Subdivision 309.21. Accordingly I find the three visa applicants meet the requirements of cl.309.311.

32. I have considered the evidence of the review applicant, his wife and the three visa applicants in relation to the time of decision requirements. I am satisfied that at the time of this decision the three visa applicants are single, and are not engaged and have not been engaged to be married. I am satisfied that at the time of this decision the three visa applicants do not have a spouse or partner and have never had a spouse or partner.

1. I have considered the evidence of the review applicant, his wife and the three visa applicants. I am satisfied that at the time of this decision all three visa applicants are over the age of 18 years. I am satisfied at the time of this decision, based on the evidence before me that all three visa applicants are not employed and do not have any independent source of income. I am satisfied that the primary visa applicant arrived in Australia in 2020, after the grant of the visa dated 28 September 2020.

2. I am satisfied that since the arrival in Australia of their mother, the three visa applicants have been financially supported directly by their father. I am satisfied based on the written and oral evidence before me, that the review applicant transfers money in the name of either [Applicant C] or [Applicant B] every two or three months, in amounts of approximately $2000 or $3000. I am satisfied that this money is managed by the visa applicant [Applicant A], to pay the rent, house utility bills and the purchase of food, clothing and other necessary items. I am satisfied based on the evidence before me, that at the time of this decision and for a substantial period immediately before this time, the three visa applicants have been wholly or substantially reliant on the review applicant for financial support to meet their basic needs for food, clothing and shelter. Further I am satisfied that the reliance of the three visa applicants on the review applicant is greater than their reliance on any other person or source of support, for financial support to meet their basic needs for food, clothing and shelter.

3. I have applied the principles established in Al Naqi v MIMA [2007] FMCA 874, namely that a broad and practical approach is appropriate when considering financial support to the three visa applicants from either the primary visa applicant, [Ms A], or her spouse the review applicant. I am satisfied that the review applicant and the primary visa applicant are still in a spousal relationship, and their spousal relationship is an essential or substantial part of the reason that the support is being provided to the three visa applicants. I therefore am satisfied that the financial support provided directly by the review applicant can be considered as support provided by the primary visa applicant (through her spouse).

4. Therefore I am satisfied that the three visa applicants are the dependent children of the primary visa applicant, [Ms A], at the time of decision, within the meaning of r.1.05A. I am satisfied that the three visa applicants are the dependent children of the primary visa applicant within the meaning of r.1.03(b)(i). Accordingly, I am satisfied that the three visa applicants are members of the family unit of the primary visa applicant, [Ms A] within the meaning of r.1.12(1)(b) at the time a decision.

5. For the above reasons I am satisfied that the three visa applicants made a combined application with the primary visa applicant, who is a person who satisfies the primary criteria. Based on the Department’s decision record I am satisfied that subsequent to the combined application being made, the three visa applicants were found by the Minister not to be a members of the family unit of the primary visa applicant, who is a person who satisfies the primary criteria. I am satisfied that subsequent to the primary visa applicant, being granted a Subclass 309 visa and Subclass 100 visa on 28 September 2020, the Tribunal now finds the three visa applicants to be members of the family unit of that person who satisfies the primary criteria.

6. Accordingly, the Tribunal finds the three visa applicants meet the requirements of cl.309.321(b)(i), (ii) and (iii).  Therefore the three visa applicants meet the requirements of cl.309.321 at the time of decision.

   Conclusions

7. For the above reasons, the Tribunal is satisfied that the three visa applicants meet the requirements of cl.309.311 and cl.309.321.

8. 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

9. 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 Bourke
   Member

   
   

   ATTACHMENT  - Extract from Migration Regulations 1994

   1.15ASpouse

   (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).