2015556 (Migration) - [2021] AATA 5011

2015556 (Migration) [2021] AATA 5011 (3 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2015556

MEMBER:David Crawshay
DATE:3 December 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 03 December 2021 at 9:46am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – member of the family unit – usually resident in the household – dependent on the primary visa applicant – irregular money transfers for accommodation – customary adoption – consideration of referral for Ministerial Intervention – separation from the primary visa applicant – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 351, 359
Migration Regulations 1994, rr 1.03, 1.04, 1.05, 1.12; Schedule 2, cls 309.311, 309.321
CASES
Al Naqi v MIAC [2007] FMCA 874
Berenguel v Minister for Immigration and Citizenship (2014) 250 CLR 664
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 Home Affairs to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants, being the [first-named visa applicant] and the [second-named visa applicant], applied for the visas on 30 September 2013 on the basis of being secondary applicants to the visa application of [Ms A], who is the primary visa applicant. The primary visa applicant applied for the visa on the basis of being in a partner relationship with [Mr B], who is the sponsor and the review applicant. There are four other secondary applicants attached to the visa application. These secondary applicants are claimed to be biological children of the primary visa applicant and review applicant.
The delegate refused to grant the visas on 9 December 2019 on the basis that the visa applicants did not satisfy the requirements of cl.309.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 309.311 of Schedule 2 relevantly requires the visa applicants to be members of the family unit of a person who satisfies the primary criteria in Subdivision 309.21 at the time of application.
The review applicant appeared before the Tribunal on 22 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants, and from the primary visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The review applicant was represented in relation to the review by his registered migration agent, [named]. The representative attended the Tribunal hearing and provided detailed submissions.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review…

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 2015556 (Migration)

Details

AGLC: 2015556 (Migration) [2021] AATA 5011
Case: [2021] AATA 5011
Decision Date: 3 December 2021

CaseChat Overview and Summary

This matter concerned an appeal to the Tribunal regarding the refusal of Partner (Provisional) (Class UF) visas, subclass 309. The primary dispute revolved around whether the visa applicants qualified as members of the family unit of the primary visa applicant, as defined by the Migration Regulations 1994, at the time of application and at the time of the decision. The Tribunal was required to consider the applicants' relationship to the primary visa applicant, their usual residence, and their dependency.

The legal issues before the Tribunal were twofold: firstly, whether the visa applicants were members of the family unit of the primary visa applicant at the time of application, satisfying clause 309.311 of Schedule 2 to the Regulations; and secondly, whether they met one of the alternative requirements of clause 309.321 in relation to being members of the family unit at the time of the decision. The Tribunal also considered a non-disclosure certificate placed on departmental folios, ultimately finding it invalid but not intending to disclose the information contained within.

The Tribunal reasoned that for the applicants to be considered members of the family unit under regulation 1.12(1)(e) at the time of application, they needed to be a relative of the primary visa applicant, not have a spouse or de facto partner, be usually resident in the primary visa applicant's household, and be dependent on the primary visa applicant. While acknowledging the difficult circumstances faced by the applicants, including their status as Hazara refugees in Pakistan and the separation from the primary visa applicant if granted visas, the Tribunal determined that the applicants did not satisfy the criteria for being a member of the family unit at the time of application. The Tribunal also considered a referral for Ministerial Intervention but decided against it, as it would have resulted in the separation of the visa applicants from the primary visa applicant, which it found undesirable.

Consequently, the Tribunal affirmed the decision not to grant the Partner (Provisional) (Class UF) visas to the applicants.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issues in this review are whether the visa applicants:·were members of the family unit of the primary visa applicant at the time of application and satisfy cl.309.311 of Schedule 2 to the Regulations; and/or·are able to satisfy one of the two alternative requirements of cl.309.321 in relation to being members of the family unit of the primary visa applicant at the time of this decision.Non-disclosure certificate The Tribunal made the review applicant and his representative aware of a s.375A non-disclosure certificate that had been placed on a number of Department folios because the Department considered that disclosure of the information in these folios would allow the identity of a confidential source to be revealed. The Tribunal told the review applicant that the folios appeared to be internal Department notes and automatically-generated records, and that it could not divine from the folios how the identity of a confidential source could be revealed. The Tribunal told the review applicant that, as a result, it did not consider the certificate to be valid. However, it told him that it did not intend to reveal the information in the folios to him as the information did not appear to reveal information that should be put to him including under s.359AA of the Act. It did, however, tell him that it would ensure that the folios would remain available to him should he request them (subject to their not being covered by another provision).The time of application criterion Clause 309.311 is required to be satisfied at the time of application. It provides as follows:The applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21. Section 5(1) of the Act provides that “member of the family unit” of a person has the meaning given by the Migration Regulations 1994 (the Regulations). Regulation 1.03 provides “member of the family unit” has the meaning set out in r.1.12. The definition in r.1.12 applies for the purposes of both the Act and the Regulations. At the time the visa was applied for, r.1.12(1) provided as follows:For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:(a)a spouse or de facto partner of the family head; or(b)a dependent child of the family head or of a spouse or de facto partner of the family head; or(c)a dependent child of 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.[emphasis in original]

Decision

Reasons for decision

In this regard, the Tribunal readily concedes that the situation for the visa applicants is difficult to say the least. It notes that the matter was given priority because of the resurgence of the Taliban in Afghanistan and the subsequent declaration of the Islamic Emirate there. Although the visa applicants are in Pakistan and not in Afghanistan, this in itself also presents with challenges. Hazaras have typically faced tough security circumstances in Pakistan, even in the relative sanctuary of Quetta.[18] Moreover, they are mostly undocumented and are extremely limited in their movements.[19] Owing to their lack of legal status, they have limited rights to remain in Pakistan. Recently, some Hazara refugees have been removed from Pakistan and sent back to Afghanistan although these deportees appear to have been new arrivals.[20][18] Department of Foreign Affairs and Trade, “DFAT Country Information Report: Pakistan” (20 February 2019) [3.32-3.36].[19] Ibid [3.36].[20] Saadullah Akhtar, “Fleeing Afghan Hazaras face uncertain future in Pakistan”, Aljazeera (20 September 2021), >The situation will become even more difficult if the visa applicants are left in Pakistan while the primary visa applicant and her biological children leave there to come to Australia. Having said that, however, the Tribunal notes that the primary visa applicant and her biological children have yet to be granted visas to travel to Australia, and they remain in Pakistan along with the visa applicants. Unless and until her visa is approved, the primary visa applicant will likely continue to remain in Pakistan.The Tribunal has considered that if it were to refer the matter to the minister for his intervention, it would effectively be arguing for the visa applicants to be brought to Australia and away from the primary visa applicant. Given that the primary visa applicant has been caring for the visa applicants since at least 2013 when their own mother died, it believes that this is not in their interests.As such, the Tribunal will not be referring the matter to the minister for his intervention, although it would like to make clear that the only reason for its not doing so is because the visa applicants would be separated from the primary visa applicant – an arrangement it finds undesirable. It remains open to the review applicant to make this request of the minister personally and provide information in support.DECISIONThe Tribunal affirms the decision not to grant the visa applicants a Partner (Provisional) (Class UF) visas.David CrawshayMember1.12 Member of the family unit(1)For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:(a) a spouse or de facto partner of the family head; or(b) a dependent child of the family head or of a spouse or de facto partner of the family head; or(c) a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or(d) (Omitted 02/04/2005)(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.…

Ratio Decidendi

Legal Principle Established

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