2100116 (Migration)

[2022] AATA 1458

2100116 (Migration) [2022] AATA 1458 (10 January 2022)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  2100116

MEMBER:Steven Griffiths

DATE OF DECISION:  10 January 2022

DATE CORRIGENDUM

SIGNED:27 January 2022

PLACE OF DECISION:  Adelaide

AMENDMENT:  The following corrections are made to the decision:

1. Page 1 of 5, Date of Decision, the year identified as 2021 is removed and replaced with 2022.

   Statement made on 27 January 2022 at 9:43am

   Steven Griffiths
   Member

   
   

   DECISION RECORD

   DIVISION:Migration & Refugee Division

   CASE NUMBER:  2100116

   MEMBER:Steven Griffiths

   DATE:10 January 2021

   PLACE OF DECISION:  Adelaide

   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.309.311 of Schedule 2 to the Regulations; and

   ·cl.309.321 of Schedule 2 to the Regulations.

   Statement made on 10 January 2022 at 1:02pm

   CATCHWORDS

   MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – secondary visa applicants – dependents and members of the family unit – relationship status – financial support of the sponsor – accommodation changed since primary applicant left for Australia – decision under review remitted           

   LEGISLATION

   Migration Act 1958, s 65
   Migration Regulations 1994, rr 1.05, 1.12; Schedule 2, cls 309.311, 309.321

   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

2. This is an application for review of a decision made by a delegate of the Minister for Immigration on 31 December 2020 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

3. [The two named applicants] applied, as secondary visa applicants with two of their sisters and their mother as the primary applicant, for the visa on 14 March 2013 on the basis of their relationship with their sponsor, and father, [named]. 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.

4. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.311 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the visa applicants were dependents were members of the family unit.

5. The parties were assisted by their registered migration agent, [name and business specified].      

6. The sponsor appeared before the Tribunal on 7 January 2022 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the visa applicants and their mother, who was the primary applicant. The hearing was assisted by an interpreter in the Hazaragi and English languages, with the migration agent taking part.  

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

   ISSUE

8. The issue in the present case is whether the visa applicants are the dependents of, and part of the family unit of, the primary applicant as the family head at the time of the visa application and this decision.

   BACKGOUND OF THE EVIDENCE

9. [The second named applicant] was born in Afghanistan in [year] and is the son of the sponsor and primary applicant and has a brother and [number] sisters, born [in specified years], with the youngest two sisters also having been secondary visa applicants. He resides in Iran.

10. [The first named applicant] was born in Afghanistan in [year] and is the son of the sponsor and primary applicant and has a brother and [number] sisters, born [in specified years], with the youngest two sisters also having been secondary visa applicants. He resides in Iran.

11. [The sponsor] was born in Afghanistan in [year]. His parents and [sibling] are deceased. He married the primary applicant [in 1982] and they have [number] children, with the oldest [children], being daughters born [in specified years], not seeking to migrate as they are married. He arrived in Australia [in 2011], was granted a Protection 866 Visa on 10/9/12 and on 18/2/19 was granted a Resident Return 155 Visa.

    INFORMATION TO THE TRIBUNAL

12. Since the Department made a decision, the parties have provided further information to the Tribunal including:-

    Review application, 5/1/21

    [Doctor A], [Health Service 1], report on the health of the sponsor, 24/2/21 from 2012

    Migration Agent request for priority hearing, 3/3/21

    Sponsor Movement Record, 24/11/21

    Hearing invitation, 25/11/21

    Hearing Response, 21/12/21

    Migration Agent submission, 21/12/21

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The Tribunal has taken into consideration all the evidence in the Department of Home Affairs file, the Tribunal file including additional information provided by the applicants prior, during and immediately following the hearing, and the oral evidence of the hearing.

14. The Tribunal notes the refusal decision of the delate refers to concerns that the review applicants had not been working, with the Tribunal accepting the documented and oral evidence of the review applicants, sponsor and primary applicant that their Afghani family reside in Iran as illegal refugees, and with this illegal status comes the difficulty of receiving an education or working and it was for this reason the sponsor left seeking a better life for his family and settled in Australia.

15. The Tribunal accepts the documented evidence that the review applicants are the children of the sponsor and primary applicant.

16. The Tribunal accepts the documented evidence of the sponsor and all visa applicants having commenced living in Iran as illegal refugees in 2010.

17. The Tribunal accepts the documented and oral evidence of the parties that the sponsor has travelled from Australia to Iran in 2013, 2015, 2016 & 2019 for a total of approximately 266 to be with his family.

18. The Tribunal notes the oral evidence of the parties and migration agent that the situation in Iran until September 2021 had been challenging but relatively safe for the parties, but following the changes in Afghanistan, people of Afghanistan living in Iran as illegal refugees had been deported in large numbers, with it suggested to be 1.15 million, and that for this reason the review applicants rarely left their rented room in fear of being forcibly sent back to Afghanistan. 

19. The Tribunal notes the refusal decision of the delegate refers to concerns on the age of the review applicants, with the Tribunal accepting the documented evidence details of the review applicants birth in [specified years] and determines that they were [specified ages] at the time of the visa applications and are [specified ages] at the time of this decision.

20. The Tribunal notes the refusal decision of the delegate refers to concerns on the relationship status of the review applicants, while eventually forming the position that the review applicants were currently not married or engaged to be married, with the Tribunal accepting the documented and oral evidence of the review applicants, sponsor and primary applicant that the review applicants do not have partners, are not married and do not have children as at the time of this decision.

21. The Tribunal notes the refusal decision of the delegate refers to concerns that the review applicants had not been working, with the Tribunal accepting the documented and oral evidence of the review applicants, sponsor and primary applicants, in which the illegal refugee status of the family made work very difficult, that the review applicants have not worked and do not work as at the time of this decision.

22. The Tribunal notes the refusal decision of the delate refers to concerns that the review applicants were not available to speak to when telephone interviews conducted on 19/11/18, 12/2/20 and 31/12/20 were undertaken by Departmental officers.

23. The Tribunal accepts the oral evidence of the primary applicant that no arrangements had been made by Departmental staff for the visa applicants to be available at a specific time for telephone interviews, and the oral evidence that a sister of the applicants had sought the opportunity to be provided with 20 minutes to go collect the review applicants from where they were playing soccer with friends and bring them back to the family home for a telephone interview, with this option not supported and the interview concluded without the male visa applicants spoken to.

24. The Tribunal accepts the oral evidence of the review applicants, sponsor and primary applicant that at the time of these telephone interviews the situation for Afghani illegal refugees in Iran was challenging, but relatively safe, with the male visa applicants often spending time with friends during the day, while continuing to live with their mother and [sisters] and being a part of the family unit. 

25. The Tribunal accepts that the documented and oral evidence of the review applicant, sponsor and primary applicant that the primary applicant, from the time of the departure of the sponsor in early 2011, was the family head with daily responsibility for the [number] children of the parties, with the eventual result of the sponsor commencing living in Australia in late 2011 that he could commence providing financial support to the family.

26. The Tribunal accepts the documented and oral evidence of the review applicant, sponsor and primary applicant that while the parents spoke regularly, and the sponsor was involved in decision making, the mother of the children was family head and responsible for ensuring that the resources she was able to obtain through some home-based work and the financial support of the sponsor, that the children were housed, fed, clothed and received some education.

27. The Tribunal accepts the documented and oral evidence of the visa applicants that while as young men they sought the opportunity to spend time with their friends, they always accepted the need to ensure they acted as directed by their mother, the primary applicant, in her position as family head.

28. The Tribunal determines from the documented and oral evidence of the parties that the review applicants are dependent on their mother and father, as primary applicant and sponsor, and meet the provisions of Regulation 1.05A. 

29. The Tribunal determines from the documented and oral evidence of the parties that the review applicants, based on their relationship with and respect to the parents, as primary applicant and sponsor, are members of the family unit and meet the provisions of Regulation 1.12(1).

30. The Tribunal accepts the oral evidence of the sponsor and primary applicant that the primary applicant and two female secondary visa applicants, being the mother and sisters of the review applicants, were provided with a visa to live in Australia and arrived in September 2021.

31. The Tribunal accepts the oral evidence of the visa applicant, sponsor and primary applicant that with the departure of the primary applicant and 2 female secondary applicants it was necessary for the review applicants to find another place to rent, as the owner of the previous home of the family was not prepared to allow 2 men only to remain in the home, with the review applicants now renting a room above a supermarket.

32. The Tribunal accepts the documented and oral evidence of the parties that the sponsor has continued to provide money to the review applicants, since September 2021 and the departure of the primary applicant and [number] female secondary applicants, with this money the only funds the review applicants have access to, and arrangements in place that a person who is known to the family, and has the required identification documents to be on the streets, accessing the funds and delivering them to the review applicants, as the review applicants are no longer prepared to be on the streets in fear of being “rounded up and deported to Afghanistan”.

33. The Tribunal considered all the evidence on the circumstances of the applicants and determines the evidence supports a finding that at the time of the application and this decision, the applicants had and continue to be members of the family unit of the primary applicant and sponsor.  

34. On the basis of the above the Tribunal is satisfied that the requirements of r.1.05A and r.1.12 were met at the time the visa application was made and are met at the time of this decision.

35. Therefore the visa applicant meets cl.309.311 and cl.309.321.

36. 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

37. 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.309.311 of Schedule 2 to the Regulations; and

    ·cl.309.321 of Schedule 2 to the Regulations.

    Steven Griffiths
    Member