ALDHAHER (Migration) - [2018] AATA 5676

ALDHAHER (Migration) [2018] AATA 5676 (18 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Najla Mahmoud Abdullah ALDHAHER
VISA APPLICANTS:  Mr Muataz Ali Mahjoub MAHJOUB
Ms Sara Ali MAHJOUB
CASE NUMBER:  1702856
DIBP REFERENCE(S):  BCC2014/984933
MEMBER:Justin Owen
DATE:18 December 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.311 of Schedule 2 to the Regulations
·cl.309.321 of Schedule 2 to the Regulations

Statement made on 18 December 2018 at 4:01pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – member of family unit – dependents of primary applicant – 30 years of age – highly educated – substantially reliant on their father for food, clothing and shelter – prohibited from work by Yemeni visa conditions – visa applicants currently not in a relationship – credible witnesses – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.05A, 1.12; 2.08B; Schedule 2, cls 309.311, 309.321
CASES
Al Naqi v Minister for Immigration & Anor [2007] FMCA 874
Huynh v MIMIA [2006] FCAFC 122
Kauri Timber Co (Tas) Pty Ltd v Reeman [1973] HCA 8 128 CLR 177

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 11 January 2017 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The first named visa applicant (the visa applicant) applied for the visa on 14 April 2014 on the basis of their relationship with their sponsor, the review applicant. 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, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicants did not satisfy cl.309.311 because as secondary applicants they were not members of the family unit of the primary applicant as defined in the Migration Regulations at Reg 1.12 at the time the visa application was made.
The review applicant appeared before the Tribunal on 14 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the primary applicant Dr Ali Mahjoub Abdullah Abdullah and the visa applicants Mr Muataz Ali Mahjoub Mahjoub and Ms Sara Ali Mahjoub. 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 her registered migration agent. The…

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: ALDHAHER (Migration) [2018] AATA 5676
Case: [2018] AATA 5676
Decision Date: 18 December 2018

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa, Subclass 309, made by Dr Ali Mahjoub Abdullah Abdullah, sponsored by his wife, Mrs Najla Mahmoud Abdullah Aldhaher. The primary applicant's twin son and daughter, Mr Muataz Ali Mahjoub Mahjoub and Ms Sara Ali Mahjoub, applied as dependants. The delegate refused the visa application, and this refusal was subsequently reviewed by the Tribunal.

The legal issues before the Tribunal were whether the visa applicants, aged 30, were members of the family unit of the primary applicant at the time of the visa application and at the time of the decision, as required by clauses 309.311 and 309.321 of Schedule 2 to the Regulations. This required determining if they met the definition of 'dependent' under regulation 1.05A(a), which necessitates being wholly or substantially reliant on the primary applicant for financial support for basic needs, and for this reliance to be greater than on any other person or source.

The Tribunal found that the visa applicants were indeed the twin son and daughter of the primary applicant and review applicant. It considered evidence that the applicants, despite being 30 years of age and highly educated, were substantially reliant on their father for food, clothing, and shelter, and were prohibited from working by Yemeni visa conditions. The Tribunal noted that the applicants were residing in Turkey on visitor visas and were not in a relationship. Given the evidence presented, the Tribunal concluded that the matter should be remitted for reconsideration by the Minister. The Tribunal remitted the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the visa applicants 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

The Tribunal has taken into consideration all the evidence in the Departmental file BCC2014/984933, the Tribunal’s file 1702856 and the oral evidence given by all parties at the Tribunal’s hearing. What is the background of the case based on all the evidence? On 14 April 2014 the primary applicant Dr Ali Mahjoub Abdullah Abdullah applied for a 309/100 Partner visa, sponsored by his wife, Australian permanent resident Mrs Najla Mahmoud Abdullah Aldhaher (the review applicant). The visa applicant Mr Muataz Ali Mahjoub Mahjoub applied as a dependant of the primary applicant. Mr Mahjoub’s twin sister, Ms Sara Ali Mahjoub was added to the application in accordance with regulation 2.08B on 30 March 2016. On 11 January 2017 the application of the visa applicants was refused by the delegate. An application for a review of this refusal was subsequently made to the Tribunal.Review On the basis of the evidence before it the Tribunal is satisfied that the visa applicants are the twin son and daughter of the primary applicant and the review applicant. The visa applicants must be dependent on the primary applicant in order to meet the definition of ‘dependent’ as outlined in r.1.05A (a): Reg. 1.05A. The definition of ‘dependent’ requires the visa applicants are and have been for a substantial period immediately before that time wholly or substantially reliant on the primary applicant for financial support to meet their basic needs for food, clothing and shelter. In addition, the visa applicant’s reliance on the primary applicant for this financial support must be greater than his or her reliance on any other person or source of support. Cl.309.311 requires that the visa applicants be a member of the family unit of the primary applicant at the time of application. Cl.309.321 requires that the visa applicant be a member of the family unit of the primary applicant at the time of decision. The primary applicant and the review applicant attended the Tribunal’s hearing. The visa applicants gave evidence over the telephone from Turkey where they are both currently residing on Visitor visas. The review applicant said she currently lives in Lurnea with her husband the primary applicant and her other two children. The primary applicant was granted his 309 visa in February 2017. The Tribunal notes that the review applicant’s other two children are Australian citizens who were born in Australia. The Tribunal notes from Migration Review Tribunal decision record 1108051 that the primary applicant and the review applicant lived in Australia between 1983 and 1986 whilst the primary applicant was studying dentistry at the University of Sydney. Their two sons were born in Australia during this time. After the primary applicant completed his tertiary studies the family moved back to Iraq. The primary applicant and the review applicant in their oral evidence stated that the primary applicant had been looking after the visa applicants – who are now 30 years of age – since they were born. The Tribunal notes that the primary applicant was Professor of Dentistry at the main university in Yemen from 2003 until his departure for Australia after being granted his 309 visa in 2017.

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 Minister’s delegate found that the visa applicants were not members of the family unit of the primary applicant at the time the visa application was made. The Tribunal has taken into consideration all the evidence in the Departmental file BCC2014/984933, the Tribunal’s file 1702856 and the oral evidence given by all parties at the Tribunal’s hearing. What is the background of the case based on all the evidence? On 14 April 2014 the primary applicant Dr Ali Mahjoub Abdullah Abdullah applied for a 309/100 Partner visa, sponsored by his wife, Australian permanent resident Mrs Najla Mahmoud Abdullah Aldhaher (the review applicant). The visa applicant Mr Muataz Ali Mahjoub Mahjoub applied as a dependant of the primary applicant. Mr Mahjoub’s twin sister, Ms Sara Ali Mahjoub was added to the application in accordance with regulation 2.08B on 30 March 2016. On 11 January 2017 the application of the visa applicants was refused by the delegate. An application for a review of this refusal was subsequently made to the Tribunal.Review On the basis of the evidence before it the Tribunal is satisfied that the visa applicants are the twin son and daughter of the primary applicant and the review applicant. The visa applicants must be dependent on the primary applicant in order to meet the definition of ‘dependent’ as outlined in r.1.05A (a): Reg. 1.05A. The definition of ‘dependent’ requires the visa applicants are and have been for a substantial period immediately before that time wholly or substantially reliant on the primary applicant for financial support to meet their basic needs for food, clothing and shelter. In addition, the visa applicant’s reliance on the primary applicant for this financial support must be greater than his or her reliance on any other person or source of support. Cl.309.311 requires that the visa applicants be a member of the family unit of the primary applicant at the time of application. Cl.309.321 requires that the visa applicant be a member of the family unit of the primary applicant at the time of decision. The primary applicant and the review applicant attended the Tribunal’s hearing. The visa applicants gave evidence over the telephone from Turkey where they are both currently residing on Visitor visas. The review applicant said she currently lives in Lurnea with her husband the primary applicant and her other two children. The primary applicant was granted his 309 visa in February 2017. The Tribunal notes that the review applicant’s other two children are Australian citizens who were born in Australia. The Tribunal notes from Migration Review Tribunal decision record 1108051 that the primary applicant and the review applicant lived in Australia between 1983 and 1986 whilst the primary applicant was studying dentistry at the University of Sydney. Their two sons were born in Australia during this time. After the primary applicant completed his tertiary studies the family moved back to Iraq.

Decision

Reasons for decision

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 The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 309 (Partner (Provisional)) visa:·cl.309.311 of Schedule 2 to the Regulations·cl.309.321 of Schedule 2 to the Regulations Justin OwenSenior Member

Ratio Decidendi

Legal Principle Established

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