ALSAWAFI (Migration)

[2021] AATA 4532

ALSAWAFI (Migration) [2021] AATA 4532 (19 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Suad Khaleel Ibrahim Alsawafi

VISA APPLICANT:  Mr Mohammed Qasim Hasan Alsafi

CASE NUMBER:  1908659

HOME AFFAIRS REFERENCE(S):          2018000887 OSF2018/000887

MEMBER:Moira Brophy

DATE:19 November 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl 101.213(1)(a) of Schedule 2 to the Regulations.

Statement made on 19 November 2021 at 10:07am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – low-quality copy of father’s death certificate provided to department – no response to request for higher-quality copy – copy provided to tribunal – criteria for applicants over 18 – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 62(1), 65
Migration Regulations 1994 (Cth), Schedule 2, cls 101.221(2)(b), 101.213(1)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 February 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 6 February 2018. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

4. The delegate refused to grant the visa on the basis that cl 101.213 was not met because the applicant had been requested to provide a copy of their father’s death certificate. A copy was provided in accordance with this request, but it was determined the copy provided was of low quality. A better copy was requested. At the time of the delegate’s decision a better copy had not been provided. In refusing to grant the visas, the delegate exercised their discretion under s 62 of the Act to proceed to make a decision without taking additional steps to obtain a legible copy of the death certificate. The delegate determined the applicant was not able to meet cl 101.213.

5. The Tribunal exercised its discretion to hold the hearing by way of a video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The review applicant appeared before the Tribunal by way of video link on 16 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.

7. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

8. Prior to hearing the review applicant provided to the Tribunal:

   ·Evidence of financial support provided by review applicant to visa applicants.

   ·Death Certificate.

   ·Translated Death Certificate.

   ·Evidence Death Certificate was sent to Australian Embassy.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. By way of brief background, where a visa applicant is invited to provide additional information but fails to give that information before the time for giving it has passed, s 62(1) allows the Minister (or her delegate) to make a decision to grant or refuse a visa without taking any action to obtain the additional information. That is, s 62 is a procedural provision, a discretion to be exercised by the delegate rather than a discrete criterion which an applicant must satisfy for the grant of the visa. The delegate’s exercise of this discretion therefore appears to have no bearing on the consideration of the Schedule 2 criteria in these matters.

11. It's not immediately clear to the Tribunal what relevance the applicants’ failure to provide the death certificate had to the delegate’s assessment of these criteria. The decision record states the death certificate was dispositive to whether cl 101.213 was met as it bore on the issue of whether the applicants’ need to travel to Australia to join their mother (the sponsor), however, the requirements in cl 101.213 relate to an applicant’s relationship status, whether they are engaged in full-time work and whether they have been undertaking a full-time course of study leading to the award of a professional, trade or vocational qualification since turning 18, or within a certain time of completing the equivalent of Year 12. In any event, although the delegate’s reasons for finding cl. 101.213, 102.211 and 117.211 are not met is unclear, the Tribunal can ‘cure’ any legal error in the primary decision through completing merits review of the decision in accordance with statutory procedures.

12. In this regard, the Tribunal’s usual practice is to limit its review to the criteria considered by the delegate – in this case, and in relation to the Subclass 101 visa, cl 101.213.

    Criteria for applicants over 18

13. If, at the time of application, the visa applicant has turned 18, they need to meet certain requirements relating to relationships, work, and study: cl 101.213. These requirements must continue to be met at the time of decision: cl 101.221(2)(b).

14. The Tribunal is satisfied that at the time of application, the visa applicant was not be engaged to be married and did not have or ever have had a spouse or de facto partner: cl 101.213(1)(a).

15. Accordingly, cl 101.213(1)(a) is met.

16. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

17. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

    ·cl 101.213(1)(a) Schedule 2 to the Regulations.

    Moira Brophy
    Member