Asif (Migration) - [2024] AATA 1431

Asif (Migration) [2024] AATA 1431 (21 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Hadi Asif
VISA APPLICANTS:  Ms Zubaida Shah Bakul
Ms Fatima Ghulam Ali
Ms Hameeda Ghulam Ali
CASE NUMBER:  2003931
HOME AFFAIRS REFERENCE(S):          OSF2013/09424
MEMBER:Tegen Downes
DATE:21 May 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Partner (Provisional) (Class UF) visas.

Statement made on 21 May 2024 at 12:32pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – secondary visa applicants – members of the family unit – sponsor’s mother and sisters – wholly or substantially reliant – primary applicant financially supported the visa applicants in Iran at an earlier time – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl 309.311; rr 1.03, 1.05, 1.12
CASES
Al Naqi v MIMA [2007] FMCA 874
Alimi v MIAC [2007] FMCA 1520
Huynh v MIMA [2006] FCAFC 122
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 Home Affairs to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under section 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visa on 30 June 2013. The delegate refused to grant the visas on 5 January 2020 on the basis that the visa applicants did not satisfy the requirements of cl 309.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the visa applicants were not ‘members of the family unit’ of the primary applicant, within the meaning of the Act.
The sponsor appeared before the Tribunal on 21 May 2024 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
ISSUE AND LAW
The issue in this review is whether, at the time of application, the visa applicants were ‘members of the family unit’ of the primary applicant, for the purposes of cl 309.311 of Schedule 2 to the Regulations.
The definition of ‘member of the family unit’, for the purposes of the Act and Regulations, is set out in reg 1.12(1), which provides that a person is a member of the family unit of another person (the family head) if the person is:
a.the spouse or de facto partner of the family head;
b.a dependent child of the family head or of their spouse or de facto partner;
c.a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild); or
d.a relative of the family head or their spouse or de facto partner who:
i.does not have a partner;
ii.is usually resident in the family head’s household; and
iii.is dependent on the family head.
Relative is defined in reg 1.03 to include a parent, child, sibling, grandparent, grandchild, aunt, uncle, niece, nephew or…

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 Asif (Migration)

Details

AGLC: Asif (Migration) [2024] AATA 1431
Case: [2024] AATA 1431
Decision Date: 21 May 2024

CaseChat Overview and Summary

This matter concerned an appeal against the Tribunal's decision to affirm the refusal of a Partner (Provisional) visa (Subclass 309) to the sponsor's mother and two sisters. The core of the dispute revolved around whether these individuals qualified as "members of the family unit" of the primary applicant, as required by the migration regulations.

The legal issue before the court was whether the visa applicants, the sponsor's mother and sisters, were "members of the family unit" of the primary applicant at the time of the visa application. This required determining if they were wholly or substantially reliant on the primary applicant for financial support to meet their basic needs for food, clothing, and shelter, and if this reliance was greater than any reliance on other sources.

The court considered the evidence regarding financial support provided to the visa applicants. It noted that while the primary applicant had provided financial support to the visa applicants in Iran at an earlier time, and the sponsor had resumed this role since late 2019, the critical period for assessment was at the time of the visa application. The court found that at that time, the visa applicants were not members of the family unit of the primary applicant, and therefore, the criteria under clause 309.311 of Schedule 2 to the Regulations were not met.

Consequently, the Tribunal's decision to affirm the refusal of the visa was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Similarly, in Alimi v MIAC [2007] FMCA 1520, which concerned the refusal of the sponsor’s brother’s visa application, the court relevantly stated:19. As to Al Naqi, it appears to me that the overall result was correct. The applicant took exception to the passage cited above from paragraph 14 of that decision. However, it seems to me that the applicant may have misconstrued that passage. His Honour was simply saying, as I understand it, that it may sometimes be helpful, in ascertaining the precise source of support, to ascertain the reasons for the provision of that support. His Honour was not saying that it is always necessary to identify the reasons for support being given, much less that there need to be good reasons for that support. The ratio of Al Naqi appears to me to be that, at least in relation to secondary applicants for a partner visa, where the ultimate source of support is a particular person, the secondary applicant is not the dependent of that person’s spouse. As my decision in this case is consistent with the ratio of Al Naqi, it is unnecessary for me to dwell further on this point.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The sponsor was born in Pakistan. He came to Australia in 2011 and was granted a Protection Visa. The primary applicant is the sponsor’s wife and cousin. She was born in Pakistan and came to Australia in 2020 following the grant of her Partner visa. The visa applicants are the sponsor’s mother and two sisters (and also the primary applicant’s aunt and cousins). The sponsor gave evidence at the hearing to the following effect:a.The sponsor and the primary applicant married in January 2013. Following their marriage, they lived in Iran together with the visa applicants. The primary applicant and the visa applicants continued to live together in Iran for approximately one year, while the sponsor returned to Australia after approximately three months.b.Before their marriage, the primary applicant and the visa applicants lived in Pakistan in the same neighbourhood, but not in the same household. The primary applicant worked in a beauty parlour and also worked privately as a tailor. She financially supported the visa applicants by giving them cash. The sponsor did not provide financial support to them because he was in detention in Australia until in or about May 2012.c.The primary applicant moved back to Pakistan in 2014 to work. The visa applicants remained in Iran. The primary applicant visited the visa applicants approximately seven times with the sponsor. After the primary applicant started work, she resumed providing financial support to the visa applicants by transferring money to them through an agency. This continued until late 2019, when the primary applicant stopped work pending her move to Australiad.Since late 2019, the sponsor has resumed the role of financially supporting the visa applicants. The primary applicant has not worked since late 2019. The primary applicant did not give evidence at the hearing because she was in Pakistan, and the sponsor did not nominate her as a witness so that the Tribunal could facilitate her giving evidence by Microsoft Teams.Are the visa applicants’ members of the family unit of the primary applicant?

Decision

Reasons for decision

Accordingly, at the time of application, the visa applicants were not members of the family unit of the primary applicant and cl 309.311 of Schedule 2 to the Regulations was not met.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF).Tegen DownesMember1.12 Member of the family unit(1)For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:(a) a spouse or de facto partner of the family head; or(b) a dependent child of the family head or of a spouse or de facto partner of the family head; or(c) a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or(d) (Omitted 02/04/2005)(e) a relative of the family head or of a spouse or de facto partner of the family head who:(i)does not have a spouse or de facto partner; and(ii)is usually resident in the family head’s household; and(iii)is dependent on the family head.…1.05A Dependent(1) Subject to subregulation (2), a person (the first person) is dependent on another person if: (a) at the time when it is necessary to establish whether the first person is dependent on the other person: (i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.(2) …

Ratio Decidendi

Legal Principle Established

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