Al-Shammary (Migration) - [2021] AATA 1029

Al-Shammary (Migration) [2021] AATA 1029 (25 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Muhsin Ali Mehalhel Al-Shammary
VISA APPLICANTS:  Mrs Laila Mousa Ashbaan Al-Jorani
Miss Sukaina Mohsin Oleiwi Alkbeeh
Miss Aseel Mohsin Oleiwi Alkbeeh
Master Mahdi Mohsin Oleiwi Alkbeeh
CASE NUMBER:  2004970
DIBP REFERENCE(S):  OSF2012/005171
MEMBER:Michael Cooke
DATE:25 March 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 309 (Spouse (Provisional)) visas:
·Public Interest Criterion 4020 for the purposes of cl.309.225 of Schedule 2 to the Regulations.

Statement made on 25 March 2021 at 11:46am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – false or misleading evidence in visa application – stateless Bidoon or Iraqi citizen – half-brother, father’s work as police officer, previous international travel and son’s passport not declared – asserted incorrect information on several occasions – late provision of correct information does not cure original breach – compelling or compassionate reasons justifying grant of visa – delay in processing visa – lengthy family separation – serious security situation in home country – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 105
Migration Regulation 1994 (Cth), Schedule 2, cl 309.225; Schedule 4, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2014] FCCA 1264
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Singh v MIBP [2018] FCCA 1136; [2019] FCAFC 22
Trivedi v MIBP [2014] FCAFC 42; (2014) 220 FCR 169
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 Immigration on 9 March 2020 to refuse to grant the applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 23 December 2012. The delegate refused to grant the visas 9 March 2020 on the basis that the first named applicant (the visa applicant) did not satisfy the requirements of cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the visa applicant did not meet PIC4020(1).
The review applicant (Mr Al-Shammary) appeared before the Tribunal on 14 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone from Babylon, Iraq. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The review applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The delegate’s decision record (found on the Tribunal file) indicates that on 31/12/2012, the applicant provided evidence to the Department that was considered to be of a…

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: Al-Shammary (Migration) [2021] AATA 1029
Case: [2021] AATA 1029
Decision Date: 25 March 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an appeal by Ms Al-Shammary concerning a Partner (Provisional) (Class UF) visa, subclass 309. The applicant had provided information to the Department of Home Affairs that was considered to be false or misleading, leading to the refusal of her visa application. The core of the dispute revolved around the applicant's claims of statelessness, the omission of her half-brother from the application, and her father's employment as a police officer in Kuwait, as well as her international travel history.

The Tribunal was required to determine whether the applicant had provided false or misleading information in her visa application, and if so, whether there were compelling or compassionate reasons that justified the grant of the visa despite this. Specifically, the Tribunal had to assess the applicant's repeated assertions of statelessness, her failure to declare a half-brother and her father's occupation, and her travel to India, all of which contradicted later provided information. The Tribunal also had to consider whether the late provision of correct information could cure the original breach of providing false or misleading evidence.

The Tribunal found that the applicant had indeed provided false or misleading information on multiple occasions, including her claims of statelessness and the omission of her half-brother and father's occupation. The Tribunal noted that the applicant maintained these incorrect statements until she was specifically asked to reconfirm her citizenship in June 2019, and only provided corrected documentation, including Iraqi identification and passports, in February 2020. The Tribunal concluded that the late provision of correct information did not negate the initial breach of providing false or misleading evidence. However, given the significant delay in processing the visa application, the lengthy family separation, and the serious security situation in the applicant's home country, the Tribunal determined that the matter should be remitted for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The delegate’s decision record (found on the Tribunal file) indicates that on 31/12/2012, the applicant provided evidence to the Department that was considered to be of a ‘non-genuine’ nature. The applicant stated in her Form 47SP that she was born in Kuwait as a stateless person. She also stated that her three children, included on the application were stateless. The applicant also stated during an interview on 17/7/2013 that she and her children do not have any IDs or travel documents. The applicant also claimed on her Form 80 that she and her family were stateless. She made no mention of travel to India in 2014 and did not provide the details of all her siblings. the applicant to have travelled to India she would have required travel documents which she has previously stated she was unable to obtain. The applicant was asked to re-confirm her responses, specifically in regard to the citizenship of the applicant and her family, the details of her siblings, and her travel history. The applicant maintained her claims of statelessness, family composition and travel history via email on 26/6/2019. The applicant failed to declare, on her application and Form 80, her half-brother, Abdulla AJAJ (DOB 29/6/1986), with whom she shares a father. The father of both Mr AJAJ and the applicant was a police officer in Kuwait. The Department also has evidence that the applicant travelled to India in 2014. The applicant was provided with 28 days to provide comment on the suspected ‘non-genuine’ information supplied to the Department. On 3 February 2020, the following response was provided to the Department by the applicant’s migration agent on her behalf and it stated that:·The applicant didn’t include her half-brother on her application due to human error and misunderstanding.·The applicant’s father was a police officer in Kuwait and passed away in 2001.·in relation to her travel to India in 2014 she stated that “at the time of her application she was undocumented; however she lately managed to obtain Iraqi documents and now she understands her obligations under section 105 of the Act to correct any incorrect information”. The response then detailed the updated information that the applicant wishes to provide the Department including:· Adding her half-brother’s details to her application· Copies of her and her children’s Iraqi National ID cards (applicant and her two daughters issued on 23/07/2018 and son, Mahdi’s, issued on 28/4/2010)· Copies of her and her children’s Iraqi Passports (issued 6/8/2018) The delegate acknowledged that the applicant had now provided evidence of her Iraqi nationality. However, until as recently as June 2019, when she was asked via email to reconfirm her citizenship, she had maintained to the Department that she was stateless. It was not until February 2020 when the applicant responded to a request for comment on the ‘non-genuine’ information that she provided her Iraqi passport and ID card.