Dolatkhahnejad (Migration) - [2018] AATA 324

Dolatkhahnejad (Migration) [2018] AATA 324 (19 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Majid Dolatkhahnejad
VISA APPLICANT:  Mr Salar Dolatkhahnejad
CASE NUMBER:  1717096
DIBP REFERENCE(S):  OSF2013096740
MEMBER:Margie Bourke
DATE:19 February 2018
PLACE OF DECISION:  Melbourne
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.309.311 of Schedule 2 to the Regulations.

Statement made on 19 February 2018 at 1:49pm

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – Combined application – Membership of the same family unit – Biological son of the review and primary applicant – Parents divorced so son would be exempt from national service – Applicant unemployed – Dependent on mother
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994,rr 1.05A ,1.12 Schedule 2 cl 309.21, 309.311
CASES
Al Naqi v MIAC [2007] FMCA 874
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 16 July 2017 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 7 October 2013 on the basis of his relationship with his 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 who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter it is the secondary criteria in cl.309.311 that is relevant to the visa applicant.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.311 because the delegate was not satisfied that the visa applicant, Salar Dolatkhahnejad, was the dependent child of, or the member of the family unit of, the spouse of the review applicant.
The review applicant appeared before the Tribunal on 8 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and from his mother via telephone.
The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa applicant in this review was the secondary visa applicant, and the son of the primary visa applicant, in the application for the subclass 309 visa. Based on the evidence before it, I am satisfied that the primary visa applicant and the younger secondary visa applicant, (that is the mother…

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: Dolatkhahnejad (Migration) [2018] AATA 324
Case: [2018] AATA 324
Decision Date: 19 February 2018

CaseChat Overview and Summary

This matter concerned a Partner (Provisional) (Class UF) visa, subclass 309, where the applicant, Salar, was the secondary applicant and the biological son of the primary applicant. The dispute centred on whether Salar qualified as a member of the family unit of the primary applicant at the time of the combined visa application. The Tribunal was required to determine if Salar met the criteria for a subclass 309 visa, specifically whether he was a dependent child and a member of the family unit of the primary applicant.

The Tribunal considered whether Salar met the requirements of cl.309.311, which necessitates being a member of the family unit and having made a combined application with a person satisfying the primary criteria. It was established that the primary applicant held a subclass 309 visa, thus meeting the primary criteria. The Tribunal was satisfied that Salar made a combined application with his mother, the primary applicant. The core issue then became whether Salar was a member of the family unit as defined by r.1.12 at the time of application.

The Tribunal found that Salar, born in 1992, was 21 years old at the time of the application on 6 October 2013. Based on identification documents, Salar was confirmed as the biological son of the primary and review applicants. Although the primary and review applicants were divorced, the Tribunal gave significant weight to the fact that the Department granted the primary applicant a subclass 309 visa despite the divorce. This led the Tribunal to conclude that the Department accepted the divorce was obtained to enable Salar to avoid national service, and that the spousal relationship remained genuine. Consequently, the Tribunal was satisfied that Salar was the child of the primary applicant and, given the circumstances surrounding the divorce and his exemption from national service, was considered a dependent child and a member of the family unit. The Tribunal remitted the application for reconsideration, directing that the visa applicant met the criteria under cl.309.311.

Orders

Orders of the court

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Background

Background to the litigation

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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 visa applicant in this review was the secondary visa applicant, and the son of the primary visa applicant, in the application for the subclass 309 visa. Based on the evidence before it, I am satisfied that the primary visa applicant and the younger secondary visa applicant, (that is the mother and younger brother of the visa applicant in this review), have been granted subclass 309 visas. The issue in the present case is whether the visa applicant is the dependent child, and a member of the family unit of the primary visa applicant, his mother, as named in the original application for the visa. To meet the requirements of cl.309.311 the secondary visa applicant is required to be a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21 at the time of application. As the primary visa applicant is the holder of a subclass 309 visa, I am satisfied she meets the primary criteria in Subdivision 309.21. Based on the application forms, I am satisfied the visa applicant Salar made a combined application for the visa with his mother, the primary visa applicant. The issue to be determined in this review is whether the visa applicant, Salar, is a member of the family unit of the primary visa applicant within the meaning of r.1.12 at the time of application. Based on the visa applicant’s identification documents including his Iranian passport, Iranian identity certificate, Iranian national identity card and Iranian conscription service exemption card, I am satisfied that he was born in 1992, and at the time of application which was 6 October 2013, he was 21 years of age. Based on the names of his parents recorded on the identity certificate, I am satisfied that the visa applicant Salar is the biological son of the review applicant and the primary visa applicant. Therefore I am satisfied that Salar is the child of the primary visa applicant, Masoumeh, in the original visa application, and the review applicant, Majid, in this review, and was aged over 18 years of age at the time of application for the visa. A child is a member of the family unit within the meaning of r.1.12(1) (b) if the person is the dependent child of the family head or of the spouse or de facto partner of the family head. I am satisfied, as stated above that the visa applicant Salar, is the child of the primary visa applicant Masoumeh. Based on the certified copy of marriage deed, I am satisfied that the primary visa applicant and the review applicant were married in 1991. I have considered that the primary visa applicant and review applicant are divorced, and the divorce document is dated 29 May 2011, and the document records authorisation for the divorce was dated 30 October 2010. I have considered the visa applicant, Salar, was exempted from national service, and the evidence before me is that the visa applicant’s parents obtained a divorce so their eldest son, Salar, was exempted from national service. I have considered and have given significant weight to the fact the Department granted the primary visa applicant a subclass 309 visa despite the evidence that she had divorced her husband, and therefore I conclude the Department accepted that the primary visa applicant and the review applicant obtained the divorce to enable Salar to avoid national service, and they remained in a genuine spousal relationship.

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 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.309.311 of Schedule 2 to the Regulations.Margie BourkeMember

Ratio Decidendi

Legal Principle Established

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