Gebreslassie (Migration) - [2018] AATA 4377

Gebreslassie (Migration) [2018] AATA 4377 (28 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Tewolde Tsegabrhan Gebreslassie
VISA APPLICANTS:  Mr Semere Brhane Hailu
Mr Sahlit Brhane Hailu
CASE NUMBER:  1603627
DIBP REFERENCE(S):  OSF2014/044660
MEMBER:Justin Owen
DATE:28 September 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.
Statement made on 28 September 2018 at 10:53am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) – subclass 309 (Spouse (Provisional) –dependent children – visa and primary applicant are cousins – small age difference between applicants – evidence of financial support of family members – questions about legal adoption of visa applicants – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.04, 1.05A, 1.12 Schedule 2 cls 309.211, 309.311
CASES
Al Naqi v Minister for Immigration & Anor [2007] FMCA 874
Huynh v MIMIA [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 Immigration on 10 February 2016 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 18 November 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 applicant did not satisfy cl.309.311 and cl.309.221 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 and at the time of decision.
The review applicant appeared before the Tribunal on 28 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the primary applicant Mrs Sellamawit Gebretsadik and witness Ms Rahina.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 and at the time of decision.
The Tribunal has taken into consideration all the evidence in the Departmental file OSF2014/044660, the Tribunal’s file 1603627 and the oral evidence presented at the Tribunal’s hearing.
What is the background of the case based on all the evidence?
On 18 November 2014 the primary applicant Mrs…

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: Gebreslassie (Migration) [2018] AATA 4377
Case: [2018] AATA 4377
Decision Date: 28 September 2018

CaseChat Overview and Summary

This matter concerned an application for Partner (Provisional) (Class UF) visas by two visa applicants, who were claimed to be the sons of the primary applicant's sister. The primary applicant, Mrs Sellamawit Tesfay Gebresadik, had applied for a 309/100 Partner visa sponsored by Mr Tewolde Tsega Birhan Gebreslassie, an Australian citizen. The delegate refused the visa application, and this decision was subsequently reviewed by the Tribunal.

The Tribunal was required to determine whether the visa applicants met the definition of 'dependent' as outlined in regulation 1.05A(a) of the Migration Regulations 1994. This definition requires that an applicant be wholly or substantially reliant on the primary applicant for financial support to meet basic needs for a substantial period immediately before the application, and that this reliance be greater than reliance on any other person or source. Furthermore, the Tribunal had to consider whether the visa applicants were members of the family unit of the primary applicant at the time of application (clause 309.311) and at the time of decision (clause 309.321).

The Tribunal considered evidence that the primary applicant had taken full responsibility for the visa applicants from the end of 2011 until her departure for Australia in 2016, and that she and the review applicant continued to support them. However, the review applicant's evidence regarding the regularity and exact amounts of financial support was imprecise. The primary applicant was unable to provide an exact figure for the support provided over the past five years. The Tribunal concluded that the visa applicants did not satisfy the criteria for the grant of the visa, specifically regarding their dependence on the primary applicant and their status as members of her family unit.

Consequently, the Tribunal affirmed the decision not to grant the visa applicants Partner (Provisional) (Class UF) visas.

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 OSF2014/044660, the Tribunal’s file 1603627 and the oral evidence presented at the Tribunal’s hearing.What is the background of the case based on all the evidence? On 18 November 2014 the primary applicant Mrs Sellamawit Tesfay Gebresadik applied for a 309/100 Partner visa, sponsored by Australian citizen Mr Tewolde Tsega Birhan Gebreslassie (the review applicant). The visa applicants applied as dependents of the primary applicant. It is claimed that the visa applicants are the sons of the primary applicant’s sister. On 10 February 2016 the application was refused by the delegate. An application for a review of this refusal was subsequently made to the Tribunal. Review The 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 applicant is and has been for a substantial period immediately before that time wholly or substantially reliant on the primary applicant for financial support to meet her basic needs for food, clothing and shelter. In addition, the applicant’s reliance on the primary applicant for this financial support must be greater than her reliance on any other person or source of support. Cl.309.311 requires that the applicants be members of the family unit of the primary applicant at the time of application. Cl.309.321 requires that the applicants be members of the family unit of the primary applicant at the time of decision. The review applicant attended the hearing with the primary applicant who has been granted her 309 visa and arrived in Australia on 4 June 2016. The review applicant said he was living in Ascot Vale with the primary applicant and their three children aged 3 years old, 2 years old and 4 months old respectively. The review applicant said that the visa applicants had lived in the household of the primary applicant since 2010 but the primary applicant took full responsibility for them from the end of 2011 until the primary applicant departed for Australia in 2016. He claimed that he and the primary applicant are still supporting them today. The review applicant said that prior to marriage the primary applicant was living with the visa applicants in Axom prior to his marriage to the primary applicant in 2014. The review applicant said that the primary applicant and the visa applicants had been living in rental property. He said said they lived in Adihaki in 2014 and 2015. The review applicant said that he, the primary applicant and the visa applicants then moved to Adiha in 2015 prior to his return to Australia. He said the visa applicants remain there today. The review applicant says he sends the visa applicants money for food and rent. He claims it is from both himself and the primary applicant. He said he earned his money as a taxi driver. He said the primary applicant about a month and a half ago started receiving Centrelink so she could also contribute. The review applicant said there was no regular amount or time period when they send the visa applicants money, it was sent as needed. In the last two years the review applicant claimed that they had sent around $5,000 to $6,000. The Tribunal asked the primary applicant how much had been provided to the visa applicants over the past five years. She said she couldn’t tell exactly.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.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 and at the time of decision. The Tribunal has taken into consideration all the evidence in the Departmental file OSF2014/044660, the Tribunal’s file 1603627 and the oral evidence presented at the Tribunal’s hearing.What is the background of the case based on all the evidence? On 18 November 2014 the primary applicant Mrs Sellamawit Tesfay Gebresadik applied for a 309/100 Partner visa, sponsored by Australian citizen Mr Tewolde Tsega Birhan Gebreslassie (the review applicant). The visa applicants applied as dependents of the primary applicant. It is claimed that the visa applicants are the sons of the primary applicant’s sister. On 10 February 2016 the application was refused by the delegate. An application for a review of this refusal was subsequently made to the Tribunal. Review The 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 applicant is and has been for a substantial period immediately before that time wholly or substantially reliant on the primary applicant for financial support to meet her basic needs for food, clothing and shelter. In addition, the applicant’s reliance on the primary applicant for this financial support must be greater than her reliance on any other person or source of support. Cl.309.311 requires that the applicants be members of the family unit of the primary applicant at the time of application. Cl.309.321 requires that the applicants be members of the family unit of the primary applicant at the time of decision. The review applicant attended the hearing with the primary applicant who has been granted her 309 visa and arrived in Australia on 4 June 2016. The review applicant said he was living in Ascot Vale with the primary applicant and their three children aged 3 years old, 2 years old and 4 months old respectively. The review applicant said that the visa applicants had lived in the household of the primary applicant since 2010 but the primary applicant took full responsibility for them from the end of 2011 until the primary applicant departed for Australia in 2016. He claimed that he and the primary applicant are still supporting them today. The review applicant said that prior to marriage the primary applicant was living with the visa applicants in Axom prior to his marriage to the primary applicant in 2014. The review applicant said that the primary applicant and the visa applicants had been living in rental property. He said said they lived in Adihaki in 2014 and 2015. The review applicant said that he, the primary applicant and the visa applicants then moved to Adiha in 2015 prior to his return to Australia. He said the visa applicants remain there today.

Decision

Reasons for decision

For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.DECISION The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.Justin OwenSenior Member

Ratio Decidendi

Legal Principle Established

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