Hassani (Migration)

[2021] AATA 2823

Hassani (Migration) [2021] AATA 2823 (1 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Aziz Hassani

VISA APPLICANT:  Mr Rohallah Hassani

CASE NUMBER:  1800318

DIBP REFERENCE(S):  OSF2013/02513

MEMBER:M. Edgoose

DATE:1 July 2021

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 and cl 309.321 of Schedule 2 to the Regulations.

Statement made on 01 July 2021 at 8:51am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa - Subclass 309 – visa applicant meets the definition of reg 1.03(b) Dependant Child – visa applicant is dependent on his father – health conditions – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03,1.21; Schedule 2, cls 309.311, 309.321

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 Immigration on 26 October 2017 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 13 November 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, 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 309.311.

4. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant meets cl 309.311 of Schedule 2 to the Regulations which relevantly states:

   Clause 309.311

   The applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21.

7. Reg 1.03 Dependent Child

   dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

   (a)  has not turned 18; or

   (b)  has turned 18 and:

   (i)  is dependent on that person; or

   (ii)  is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

8. Regulation 1.12

   (1) For the definition of member of the family unit in subsection 5(1) of the Act, and subject to sub regulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this sub regulation 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 by SR 2004, 390 with effect from 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.

9. The Tribunal has given careful consideration to the submissions made on 22 June 2021. The submissions made included a substantial submission from the visa applicant’s representatives, numerous statutory declarations, educational documents and a psychological report from Dr Peter Cook a registered Clinical Psychologist. 

10. The submission made by the visa applicant’s legal representatives, Clothier Anderson, dated 22 June 2021 disputes the reasons why the visa applicant’s application was refused. As stated in the submission this is an unusual case given that the visa applicant was interviewed by the Department at time of application over the telephone and the evidence, he provided at the time undermined his case. The specific issues at the time was that he told the Department that he was engaged in full-time employment and that he provided some of his earnings to his mother, Ms Noor Begum Hassani. Following this interview, the visa applicant sought to correct this information where he stated that he was unemployed and wholly reliant on funds from his father, the review applicant, and that he was continuing with his studies. However, at time of decision the delegate placed greater weight on the information the visa applicant provided during the initial telephone interview. The delegate also found that there was an absence of credible and reliable evidence that demonstrated the visa applicant was dependant on his father, the review applicant and his mother. The Tribunal does not accept the delegate’s finding based on the evidence before it.

11. The Tribunal notes that the educational documents indicate that the visa applicant is a student and has been studying English. The visa applicant confirmed in his own statutory declaration that he continues to receive financial support from the sponsor and that he is reliant on the sponsor. The Tribunal admitted to the department that for a period of time in 2017 he was working part-time but was not earning enough money to support himself. The only reason he worked was to ease the financial burden on his father. Since this time, he has not work and relied financially on his father. The Tribunal accepts the visa applicant has and continues to receive regular financial support from his father, the review applicant.

12. The Tribunal gives weight to the review applicant’s statutory declaration that states he is supporting his son and does not believe that he is fit for work due to his health conditions. This statement was supported by the psychological report dated 18 June 2021,

13. Based on the medical evidence dated 18 June 2021 by Dr Peter Cook a registered Clinical Psychologist the Tribunal is satisfied the visa applicant meets the definition of reg 1.03(b) Dependant Child given that the visa applicant is dependent on his father, the review applicant, and that he is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions. The Tribunal is also satisfied that the visa applicant meets reg 1.12(1)(b) given that he continues to be a dependent child of the family head whether that is his father, the review applicant or his mother. The Tribunal based on the extensive psychological report made by Dr Peter Cook that Tribunal is satisfied the visa applicant meets cl 309.321.    

14. The Tribunal places weight on the medical evidence of the visa applicant however makes no findings in relation to the information the visa applicant provided during the telephone interview to the Department at time of the visa application.

15. 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

16. 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 and cl 309.321 of Schedule 2 to the Regulations

    M. Edgoose
    Member