2217601 (Migration) - [2023] AATA 726

2217601 (Migration) [2023] AATA 726 (9 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Alasdair Colin Dougall
CASE NUMBER: 2217601

MEMBER:Member Nathan Goetz
DATE:9 March 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for the Visitor (Class FA) (Sponsored Family) Subclass 600 visa with a direction that the visa applicant satisfies the following:
·Cl 600.232 of Schedule 2 to the Migration Regulations 1994 (Cth) on the basis that the visa applicant satisfies cl 600.232(2).

DIRECTION: The Tribunal directs under s 378(1) of the Migration Act 1958 (Cth) in relation to this review that information that would identify either the visa applicant, review applicant or family members must not be published by the Tribunal.
The Tribunal is satisfied it is in the public interest that this material is not published because it would unreasonably reveal that members of the visa applicant’s family have made previous protection visa application (noting a number of provisions in the Act restrict publishing material that identifies protection visa applicants, e.g., ss 91X, 431 and 501K).

Statement made on 09 March 2023 at 4:21pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – sponsored by a settled Australian permanent resident relative – family relationship – identification documents – birth certificates – DNA evidence – offer to pay a security deposit – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, Schedule 2, cls 600.211, 600.232
CASES
Lin v MIAC (2008) 218 FLR 177
SZFYW v MIAC [2008] FCA 1259
SZHKA v Minister for Immigration & Citizenship [2008] FCAFC 138
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 under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the visa applicant a Visitor (Class FA) (Sponsored Family) Subclass 600 visa.
The review applicant was represented in the review by an Australian legal practitioner.
BACKGROUND
The visa applicant identifies as a female citizen of Iran born in [year] in Iraq and presently located in Iran.
The review applicant identifies as a male citizen of Australia born in [specified year] in Iran.
On 5 March 2019 the visa applicant applied for the visa. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with several different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.
The criteria for a Subclass 600 visa are set out in part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
On 5 April 2019 the delegate refused to grant the visa applicant the visa on the basis that she did not satisfy cl 600.211. The review applicant applied to the Tribunal for review of the decision. On 3 November 2020 the Tribunal set aside the decision and directed that the visa applicant satisfied cl 600.211, requiring the delegate to reconsider the visa application and consider the remaining criteria for the grant of the visa: AAT case 1908805.
On 18 October 2022 the delegate refused to grant the visa on the basis that the applicant did not satisfy cl 600.232.
On 1 December 2022 the review applicant applied to the Tribunal for review of the decision.
On 2 March 2023 the Tribunal wrote to the review applicant and invited him to appear at a Tribunal hearing scheduled for 22 March 2023 to give evidence and present arguments relating to the issues arising in relation to the decision under review. As the review applicant was located in New South Wales and the Member was based at the Melbourne registry of the Tribunal, the Tribunal determined that an appearance by audio-visual link was appropriate in all the circumstances. That same day, the Tribunal also requested the review applicant provide the Tribunal with certain documentation that were relevant to the issue under review. The documents requested are discussed later in this decision record.
On 6 March 2023 the Tribunal received a request from the representative’s law firm that the Tribunal hearing be postponed for at least a month because the representative was overseas and scheduled to return to work on 15 March 2023 and would be at a conference on 17 and 18 March 2023. It was suggested that the representative would be unable to adequately prepare for the hearing given his travel and attendance at a conference. It was further suggested that another lawyer from the law firm would be unable to step-in and prepare for the Tribunal hearing, as final pre-hearing supporting material is being provided.
The Tribunal considered the request for postponement but was not persuaded it should do so. The reasons for the refusal are detailed later in this decision record.
On 9 March 2023 the review applicant provided the Tribunal with the requested documents, as well as other documents. Upon receipt of those documents, the Tribunal was satisfied that it could make a decision favourable to the review applicant, meaning that the Tribunal could no longer hold a Tribunal hearing: ss 360(2)(a), 360(3), 363A.
CRITERIA FOR THE VISA
600.232
(1) One of subclauses (2) to (4) applies.
(2) The applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who is at least 18 and:
(a) a relative of the applicant; or
(b) a relative of another applicant who is a member of the family unit of the applicant; or
(c) a relative of another applicant in relation to whom the applicant is a member of the family unit.
(3) The applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who:
(a) is a member of the Commonwealth Parliament or a State Parliament; or
(b) is a member of the Legislative Assembly of the Australian Capital Territory or the Northern Territory; or
(c) holds the office of mayor.
(4) The applicant is sponsored by a Commonwealth government agency or instrumentality or a State or Territory government agency or instrumentality.
All criteria must be satisfied at the time a decision is made on the application: cl 600.2
CONSIDERATION OF RELEVANT EVIDENCE
In the visitor visa application form, the visa applicant identifies that she was born in Karbala, Iraq and is presently located in Iran where she is a citizen. The purpose of her visit to Australia was a family visit to take care of a newborn niece and the niece’s mother. She has never previously travelled to Australia or applied for a visa to come to Australia. She detailed that she wished to stay in Australia for a period of up to 3 months and will not undertake a course of study while in Australia, and that will not travel to Australia with any other person.
She detailed that she had two brothers in Australia, a brother named [Mr A] who was born in [year], and a brother named [Review Applicant Alias 1] who was born in [specified year]. The visa applicant provided a Change of Name Certificate from the New South Wales Registrar of Births, Deaths and Marriages dated [in] July 2020 to demonstrate that her brother who was born in [specified year] changed his name to [the review applicant] and provided a copy of his Australian Citizenship Certificate which was granted [in] February 2021. It is this brother who is the review applicant and the sponsor of the visa application. Both of the visa applicant’s brothers arrived in Australia as unauthorised maritime arrivals and applied for protection visas which were granted. They subsequently became Australian citizens.
The sponsor completed a Form 1149 – Application for sponsorship for Sponsored Family Visitors. In that form, there is a section about ‘What documents do you need?’ The section provides the following:
“Proof of your relationship to the applicant must be provided with this form. For example, if you are sponsoring your sibling, you should provide a copy of your full birth certificate, showing details of your parents…..You will also need to provide evidence of your Australian citizenship or permanent residence status….”
The Tribunal notes that the relevant Department policy document VM-3190 reissued on 27 January 2023 provides the following concerning cl 600.232(2):
“Decision makers can generally be satisfied that subclause 600.232(2) is met based on available information, for example the applicant's previous visa or immigration history, unless there are integrity (including fraud) or identity concerns.”
Included with the visa application was a copy of the visa applicant’s Republic of Iran - Ministry of the Interior - State Vital Statistics Registration Organisation - Birth Certificate accompanied by an English translation by a certificate translator. That birth certificate identified that the visa applicant was born in Karbala (Iraq) and that her father was ‘[Mr B]’ and her mother was ‘[Ms C].’ No birth certificate number, place of issue or district was provided for her father. No birth certificate was provided for the sponsor.
When the visa application was lodged, the sponsor provided a letter where he identified he was having problems obtaining preliminary documents, which he identified as a birth certificate. He wrote that the visa applicant was his sister because he identified her as his sister, provided her name, and provided her date of birth at the time he entered Australia in 2012, as did his brother [Mr A] when he arrived in Australia. The sponsor claimed that [Brother A’s] birth certificate, which he attached to the letter, showed that his brother and sister shared the same parents. The sponsor wrote that the visa applicant was ‘definitely’ his sister, that she raised him as a child, and that she and the sponsor were ready to perform a DNA test under any circumstances that the delegate required.
Also attached to the visa application was a document titled ‘My history of identification documents and the difficulty to obtain primary document’ written by the sponsor. In that document, the sponsor wrote that he was born in [specified year] in Iran with no hospital birth certificate but had a green card that was issued for alien residents. His mother was an Iranian with an Iranian citizenship document, but Iranian citizenship was only transferrable through a father, and the sponsor was therefore not considered a citizen of Iran. The sponsor wrote that the Iranian registry of birth issued a hand-written birth certificate, but this practically had no value.
The sponsor then detailed about his attempts to obtain identification documents following requests from the Department. He wrote that he requested his brother who resides in Iran to find secondary identity documents, and that he obtained an old birth certificate issued by Iran’s Department of State Affairs. He wrote that it could not be certified by the judicial system of Iran because it was a ‘preliminary certificate.’ The sponsor wrote of attending on multiple occasions on the Iraqi embassy to obtain documents, as well as hiring a lawyer in Iraq to obtain documents on his behalf, but that those attempts were not successful.
The delegate decided to refuse the visa application because ‘As this is a Family Sponsored application, evidence of the relationship between the sponsor and the applicant is a mandatory requirement. The relationship documents are required to be government issued and statutory declarations and family photos are not sufficient evidence of relationship in order for the sponsorship to be approved. The (visa) applicant (only) provided her birth certificate and her marriage certificate. The sponsored visitor application was consequently refused as the sponsorship was not approved.’
In the absence of the evidence required to demonstrate that the visa applicant and the sponsor were siblings, the delegate was not satisfied that the visa applicant met cl 600.232(2). Although not explicitly stated, it is clear that the delegate was not satisfied that the visa applicant met cl 600.232(3) or (4) because it was not claimed by the visa applicant that she was sponsored by a member of the Commonwealth or State parliament; a member of the Legislative Assembly of the Australian Capital Territory or Northern Territory; or sponsored by a Commonwealth or State or Territory government agency or instrumentality.
Accordingly, the delegate determined that the visa applicant failed to satisfy cl 600.232.
Following the decision on 18 October 2022 by the delegate to refuse to grant the visa, the representative wrote to the delegate on 11 November 2022 requesting that the decision be ‘re-opened’ because, as contended by the representative, the decision was made on an unlawful basis. The submission contended that:
1.The delegate decision record details that the delegate was not satisfied that at the time of the visa application the visa applicant was sponsored by a prescribed person or organisation, which was in error because the criteria for the grant of the visa are required to be satisfied at the time of decision and had not considered evidence provided after the visa application was lodged. It was claimed that the decision was therefore ‘illegal.’
2.The Tribunal in the previous review ‘raised no concerns about the claimed family relationship between the visa applicant and the sponsor and implicitly accepted the fact and genuineness of that relationship.’
That submission also detailed that the sponsor is currently in the process of engaging DNA labs to acquire evidence that he and the visa applicant are biological siblings for the purpose of cl 600.232. It was submitted that the DNA evidence would be undisputable evidence that the visa applicant and sponsor are siblings. The submission requested that the delegate vacated on the grounds of illegality and reinstated for assessment. The representative detailed that if the delegate did not do so, the sponsor would seek review of the decision with the Tribunal.
At the time the Tribunal wrote to the applicant and invited him to appear at a Tribunal hearing, it also requested documents from the applicant that were relevant to the issue being considered by the Tribunal. The Tribunal requested:
·A copy of the visa applicant’s birth certificate identifying the names of her parents (and siblings if applicable) with an accompanying English translation.
·A copy of the sponsor’s birth certificate identifying the names of his parents (and siblings if applicable) with an accompanying English translation
·A copy of the DNA evidence that the representative told the delegate was being obtained through engagement of DNA labs.
The Tribunal requested this documentation because, at least as far as the birth certificates were concerned, these documents were government-issued and would demonstrate a familiar relationship between the visa applicant and the sponsor. The Tribunal also requested a copy of the DNA evidence because it was suggested in the course of the visa application that the visa applicant and sponsor were prepared to provide this evidence and were in the process of obtaining it.
Request for postponement of the Tribunal hearing
As detailed previously, a request was made on behalf of the review applicant on 6 March 2023 that the Tribunal hearing scheduled on 22 March 2023 be postponed for approximately a month due to the representative not returning to work until 15 March 2023 and being at a conference on 17 and 18 March 2023. It was submitted that the representative would be unable to prepared for the hearing in the time available after his return to work, and that no other representative from his firm would be able to take over conduct of the review application.
The Tribunal considered the request for postponement. Ultimately, the Tribunal determined that the appropriate course of action was to defer making a decision on the postponement request until the review applicant provided the Tribunal with the birth certificates and accompanying English translations that the Tribunal requested.
The Tribunal determined that this was the appropriate course of action because the provision of these documents would likely be determinative of the review, if the documents established that there was a familial connection between the visa applicant and the sponsor. It would also be unlikely that any oral argument made at a Tribunal hearing could overcome the question about whether the visa applicant and review applicant were siblings in the absence of those documents. Tribunal staff advised the representative’s office that the Tribunal would not make a decision on the postponement request until it received those documents.
On 9 March 2023, the review applicant provided the Tribunal with the following documents:
A birth certificate for [the visa applicant] from the Iranian Ministry of the Interior, State Organisation for Civil Status Registration, accompanied by a translation from an accredited translator demonstrating that the visa applicant was born in Karbala, Iraq to a father named [Mr B] and a mother named [Ms C]
·     A certificate of birth for [Review Applicant Alias 1] from the Iranian Ministry of the Interior, Personal Status Registration Organisation, accompanied by a translation from an accredited translator demonstrating that the sponsor was born to a male named [Mr B] and a female named [Ms C].
·     A New South Wales change of name certificate demonstrating that the sponsor changed his name [in] December 2019 from [Review Applicant Alias 1] / [or a variant] to [the review applicant].
·     A birth certificate for [Ms C] from the Iranian Ministry of the Interior, State Organisation for Civil Status Registration, accompanied by a translation from an accredited translator demonstrating that [Ms C] was born in Karbala Iraq and had given birth to [number] children, including a child named [the visa applicant], and a child named [Review Applicant Alias 1].
·     Email correspondence from [a DNA testing service] dated 22 February 2023 advising that they were unable to ship a DNA kit to Iran for the purpose of obtaining a sample for DNA testing.
Upon receipt of the documents, the Tribunal no longer needed to consider the request for the postponement of the Tribunal hearing because the documents addressed the issue being considered on the review. Accordingly, the Tribunal hearing was cancelled, and the Tribunal is making a decision on the review based on the material it has.
Submission that the delegate made a decision that was ‘illegal’
The sponsor’s submission that the delegate decision was ‘illegal’ was directed to the delegate accompanying a request for the delegate to revoke the decision and to reconsider the visa application.
Given that the review did not proceed to an oral hearing, the Tribunal is unsure whether this submission would have been advanced at the Tribunal hearing, and if it was, what the review applicant contended would follow from an ‘illegal decision.’
In any event, a decision made without substantive power can be distinguished from a decision made within power but which is affected by legal error such as a failure to follow a mandatory statutory procedure or a misapplication of the law. For example, if the primary decision-maker had a valid application for a visa before it, he or she would have power pursuant to ss 47 and 65 to consider the application and, if not satisfied that the applicant met the criteria for the grant of the visa, refuse to grant the visa. In the course of considering the application, the primary decision-maker might misconstrue a criterion for the grant of the visa contained in Schedule 2 or make some other error, such as ignoring relevant material. The Tribunal upon review of that decision would have the power to consider the application, but could, by the completion of a full merits review in accordance with statutory procedures ‘cure’ the legal error in the primary decision.

In Lin v MIAC, the Federal Magistrates Court took the view that the Tribunal could cure a defect in the primary decision without specifically addressing the particular error in the delegate’s decision. As long as the Tribunal properly conducts the review which it is empowered and obliged to conduct and, after a full merits review authorised by the Migration Act and the Regulations, affirms the delegate’s decision, the review would cure the delegate’s decision of any defect.[1]
[1] Lin v MIAC (2008) 218 FLR 177 at [36].
The Tribunal is not satisfied that the delegate decision was ‘illegal,’ or ‘unlawful’ or made without the power to do so. While the Tribunal accepts that the delegate was incorrect to make reference to the visa application criteria needing to be met at the time of application, rather than at the time of the decision, that does not affect the validity of the decision. There is no merit in the argument that the decision under review was invalid.
Submission that the Tribunal previously found that the visa applicant and the sponsor are siblings
Given that the review did not proceed to an oral hearing, the Tribunal is unsure whether this submission would have been advanced at the Tribunal hearing, and if it was, what the review applicant contended would follow from an ‘illegal decision.’
It is well established that the Tribunal is not bound by any findings made by another Tribunal[2]. The Tribunal must determine a review by dealing with the issues as they present themselves at the time of its determination, according to the facts as the Tribunal finds them to be at the time.[3]
[2] SZFYW v MIAC [2008] FCA 1259 at [9]
[3] SZHKA v Minister for Immigration & Citizenship [2008] FCAFC 138 at [18]
The Tribunal acknowledges that the present review and the previous review have been conducted by the same Member. However, the issue considered in the previous review was whether the visa applicant genuinely intended to stay temporarily in Australia for the purpose of a family visit, not whether the visa applicant was sponsored for that visit by a prescribed person. While there may be some overlap concerning the facts underlying the reason for the visa application, the issues relating to the review of the refusal decisions are entirely different. The Tribunal is not persuaded by the argument that it previously found that the visa applicant were brother and sister and that it was bound by that decision.
In the present review, the issue is whether the visa applicant is sponsored by a prescribed person. The delegate was not satisfied that the visa applicant and the sponsor were siblings in the absence of the government-issued documents which established/demonstrate the relationship. This is a new issue requiring a decision. The Tribunal is not satisfied that the previous finding by the Tribunal that the visa applicant genuinely intended to visit Australia temporarily for the purpose of a family visit binds the Tribunal in the present review to be satisfied that the visa applicant and the sponsor are relatives.
FINDINGS AND REASONS
The issue in the present case is whether the visa applicant is sponsored by a settled Australian citizen, or settled permanent resident, who is at least 18 years of age and is either a relative as provided in cl 600.232(2) (a),(b) or (c), or a member of a legislature or mayor as provided in cl 600.232(3)(a), (b) or (c), or sponsored by a Government agency or instrumentality as provided in cl 600.232(4).
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
It was not claimed that the visa applicant was sponsored by a member of a legislature or mayor, not was it claimed that the visa applicant was sponsored by a Government agency or instrumentality. The Tribunal is not satisfied that the visa applicant satisfies cl 600.232 (3) or (4).
It was claimed that the visa applicant satisfies cl 600.232(2) on the basis that she was sponsored by her brother, who is an Australian citizen.
There is no issue about whether the applicant’s sponsor is a settled Australian citizen, as he has held Australian citizenship [since] February 2021. Nor is there any issue about whether the sponsor is 18 years of age, as his Australian citizenship certificate clearly demonstrates that he was born in [specified year], meaning that he is now [age] years of age.
The question is whether the sponsor and the visa applicant are brother and sister.
The review applicant has now provided the Tribunal with sufficient evidence, by way of government-issued documentation to demonstrate that both the visa applicant and the sponsor were born to people with substantially similar names. The review applicant has also provided a birth certificate that shows that his mother gave birth to [same number] children, and that document identifies that two of those children are the visa applicant and the sponsor. The Tribunal accepts that there are slight variations in spelling, but that is not uncommon on official documents.
The Tribunal also observes that it appears curious to an Australian reader (given that birth certificates produced in Australia only contain family details at the time a birth certificate is registered) that the visa applicant and sponsor’s mother’s birth certificate would detail her children. However, the DFAT Country Information Report on Iran dated 14 April 2020 details that the third page of an Iranian Shenasnameh (birth certificate booklet) contains information about the bearer’s marriage(s), divorce(s) and children on the third page.
CONCLUSION
On the basis of the material provided to the Tribunal, the Tribunal is satisfied that the visa applicant is sponsored by a relative who is a settled Australian citizen and is at least 18 years of age.
It is regrettable that the visa applicant did not provide her birth certificate, the sponsor’s birth certificate, and their mother’s birth certificate at the time she applied for the visa as it would have demonstrated the familial relationship. It would have avoided the necessity of a review to the Tribunal.
DECISION
The Tribunal remits the application for the Visitor (Class FA) (Sponsored Family) Subclass 600 visa with a direction that the visa applicant satisfies the following:
·Cl 600.232 of Schedule 2 to the Migration Regulations 1994 (Cth) on the basis that the visa applicant satisfies cl 600.232(2).
Nathan Goetz
Member