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to this review that information that would identify either the visa applicant, review applicant or family members must not be published by the Tribunal.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…

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 2217601 (Migration)

Details

AGLC: 2217601 (Migration) [2023] AATA 726
Case: [2023] AATA 726
Decision Date: 9 March 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered a review application concerning a Subclass 600 (Visitor) visa. The visa applicant, an Iranian citizen residing in Iran, sought to enter Australia under the Sponsored Family stream, with her Australian permanent resident relative as the sponsor. The delegate had previously refused the visa on two occasions, first for failing to satisfy clause 600.211 and subsequently for failing to satisfy clause 600.232 of the Migration Regulations 1994 (Cth). The review applicant sought a review of the second refusal.

The primary legal issue before the Tribunal was whether the visa applicant satisfied clause 600.232 of the Migration Regulations, which requires sponsorship by a settled Australian citizen or permanent resident who is a relative of the applicant. This clause necessitates proof of the familial relationship between the applicant and the sponsor. The Tribunal also considered the procedural fairness aspects, including a request for postponement of the hearing and the provision of requested documentation.

The Tribunal reasoned that while the visa applicant had not initially provided sufficient identification documents, such as birth certificates, to definitively establish the familial relationship, the subsequent provision of additional documentation, including DNA evidence and an offer to pay a security deposit, satisfied the requirements of clause 600.232(2). The Tribunal found that these documents, when considered together, demonstrated that the sponsor was a relative of the visa applicant. Consequently, the Tribunal was satisfied that the visa applicant met the sponsorship criteria.

The Tribunal remitted the application for the Visitor (Class FA) (Sponsored Family) Subclass 600 visa with a direction that the visa applicant satisfies clause 600.232 of Schedule 2 to the Migration Regulations 1994 (Cth) on the basis that she satisfies subclause 600.232(2). The delegate was directed to reconsider the application in light of this finding and assess the remaining visa criteria.

Orders

Orders of the court

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Background

Background to the litigation

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 VISA600.232 (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 600.2CONSIDERATION OF RELEVANT EVIDENCE

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 GoetzMember

Ratio Decidendi

Legal Principle Established

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