2101516 (Migration) - [2021] AATA 3651

2101516 (Migration) [2021] AATA 3651 (16 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2101516
MEMBER:Justine Clarke
DATE:16 September 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the 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 16 September 2021 at 6:37pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – member of family unit – secondary visa applicant is primary applicant’s cousin and review applicant’s brother – customary adoption of secondary applicant by review applicant and primary applicant after deaths of review applicant and secondary applicant’s parents – residency and dependency – living with primary applicant’s father – visa applicants fully dependent on review applicant – review applicant would continue to support secondary applicant regardless – request for expedition of review after fall of Afghan government – Hazara Shia – country information – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CA(1)(b), 65, 360(2)(a)
Migration Regulations 1994 (Cth), rr 1.03, 1.04(2), 1.05A(1)(a), 1.12(1)(b), (e), Schedule 2, cls 309.311, 309.321(a)
CASES
Al Naqi v Minister for Immigration [2007] FMCA 874
Huang v MIMA [2007] FMCA 720
Nguyen v MICMSMA [2020] FCCA 2705
Vo v Minister for Home Affairs [2019] FCAFC 108
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 on 6 January 2021 by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (Cth) (the Act).
On 5 November 2013, [Ms A] applied for the visa based on her spousal relationship with [her sponsor], who is the review applicant in this case. [The visa applicant] in this review, whom it is claimed is the review applicant’s brother, was included as one of the secondary visa applicants in the application.
At the time of application, 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 the secondary criteria only. The secondary criteria include cl.309.311 and cl.309.321.
Clause 309.311 requires that, at the time of application, 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 Subdivision 309.21.
Clause 309.321(a) requires that, at the time of decision, the visa applicant continues…

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.

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Details

AGLC: 2101516 (Migration) [2021] AATA 3651
Case: [2021] AATA 3651
Decision Date: 16 September 2021

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) visa (Subclass 309) before the Administrative Appeals Tribunal. The review applicant sought reconsideration of a decision that refused to grant the visa to a secondary applicant, who was claimed to be the review applicant's brother and the primary applicant's cousin. The central dispute revolved around whether the secondary applicant qualified as a "member of the family unit" under the relevant migration regulations.

The Tribunal was required to determine whether the secondary applicant was a member of the family unit of the primary applicant, who had been granted a Subclass 309/100 visa. Specifically, the Tribunal needed to consider which limb of regulation 1.12(1) of the Migration Regulations 1994 applied, given the claimed familial relationships and the circumstances of customary adoption following the deaths of the secondary applicant's parents. The Tribunal also had to assess the claims of dependency and usual residence within the household.

The Tribunal accepted the review applicant's declaratory evidence regarding the familial relationships. It noted that the delegate had focused on regulation 1.12(1)(e), which requires a relative to be usually resident in the family head's household and dependent. However, the Tribunal also considered the submission that the secondary applicant was a dependent child of the review applicant by way of customary adoption, potentially bringing the matter under regulation 1.12(1)(b). The Tribunal found that the delegate had failed to address this claim of customary adoption. Given the grave situation for Hazaras in Kabul, Afghanistan, the Tribunal remitted the application for reconsideration, directing that the visa applicant met the criteria under cl.309.311 and cl.309.321 of Schedule 2 to the Regulations.

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 EVIDENCE The issue in this case is whether, at the time of application on 5 November 2013, the visa applicant was a member of the family unit of [Ms A]. The information before the Tribunal is that [Ms A] has been granted a Subclass 309/Subclass 100 visa. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl.309.321 as well. The former version of r.1.12 provides:(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(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. As the delegate noted, subregulations (2), (2A), (6) and (7) are not applicable in an application for a Subclass 309 visa. The Tribunal notes that a number of the terms used in r.1.12 are defined in the Act or Regulations. In this case, [Ms A]—not the review applicant—is the so-called ‘family head’. This is because cl.309.311 provides: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.Which paragraph in r.1.12(1) applies? It is claimed that the review applicant and the visa applicant are brothers, and that the review applicant is older than the visa applicant. It is also claimed that [Ms A] is the cousin of both the review applicant and the visa applicant. The Tribunal accepts the review applicant’s declaratory evidence about these matters.[3][3] For example, see his statement of 25 October 2013 which is on the Department’s file. The delegate appears to have concluded that the only applicable paragraph in r.1.12(1) for full assessment is r.1.12(1)(e). However, since the time of the application for the visa on 5 November 2013, the representative has submitted, on behalf of his clients, that the visa applicant is a dependent child of the review applicant by way of customary adoption. That is, that the applicable provision is r.1.12(1)(b) because the visa applicant is a dependent child of the review applicant (who is the spouse of the ‘family head’).[4] Strangely, the delegate did not note or address this claim in any way in the refusal decision of January 2021.[4] For example, see the written submissions of 29 October 2013 which are on the Department’s file.

Decision

Reasons for decision

Given the grave situation for Hazaras in Kabul, Afghanistan, any efforts the Department of Home Affairs may make in expediting this case would be appreciated.DECISION The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the 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.Justine ClarkeMember1.12 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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