Burke (Migration)

[2024] AATA 130

Burke (Migration) [2024] AATA 130 (17 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Michael John Burke

VISA APPLICANT:  Mrs Siwanat Boonkwad

REPRESENTATIVE:  Mr Peng Cheng (MARN: 1172863)

CASE NUMBER:  2104064

DIBP REFERENCE(S):  BCC2019/2856720

MEMBER:Angela Julian-Armitage

DATE:17 January 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional) visa:

·cl 309.225 (PIC 4007(2)(b) for the purposes of Schedule 2 to the Regulations

Statement made on 17 January 2024 at 3:40pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – health requirements – applicant’s daughter’s mild intellectual impairment – discretion to waive requirement – daughter unlikely ever to come to Australia – age and capabilities, and guardianship granted to applicant’s son – applicant and sponsor building house for daughter in home country and applicant will visit there – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 309.225, Schedule 4, criterion 4007(1), (2)(b)

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 17 February 2021 to refuse the grant a Partner (Provisional) (Class UF) visa pursuant to s 65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 4 June 2019 on the basis of her relationship with her sponsoring husband, 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.225 due to the child of the visa applicant’s daughter did not meet Public Interest Criterion (PIC) 4007 of Schedule 4 of the Regulations. 

4. The review applicant appeared before the Tribunal on 4 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the review applicant’s son, Rohan Alexander Burke.

5. The review applicant was represented by his registered migration agent, Peng Cheng.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether there are sufficient reasons to justify that grant of a waiver of the PIC 4007.

8. In addition, it is appropriate that this Tribunal consider the nature of the spousal relationship between the review applicant and the visa applicant.

   HEALTH WAIVER

9. The Tribunal heard evidence from both the applicant and his wife in relation to the visa applicant’s daughter which, in essence, was that the wife’s daughter does suffer from a mild intellectual impairment having been born with autism This child, who is now 17 years of age, never enjoyed that opportunity of attending special school but is able to fend for herself, can cook and undertake all domestic chores as well as care for herself and understands the concept of danger.

10. Both her mother and the applicant advised that she is very unlikely to ever come to Australia. The contact that her mother and the applicant will have with her will be in Thailand where they are building a house and intend to spend half the year there once the construction of their house is completed.

11. In addition, this Tribunal has sighted a Thai Court document and a translation of that document which states that the Court has granted guardianship of the child, Warissara Kaewkham to Mr Natthasit Kaewkham, who is her brother and the visa applicant’s son.

12. In addition, the applicant’s evidence was that he has strong ties to Australia being 4^th generation Australia who would find it very difficult to have to leave Australia on a permanent basis.

13. In considering whether to waive the PIC 4007(1) provision, the Tribunal is of the view that the daughter is extremely to join the visa applicant in Australia.

14. 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

15. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    · cl 309.225 (PIC 4007(2)(b) for the purposes of Schedule 2 to the Regulations

    Angela Julian-Armitage
    Member