Hedari (Migration) - [2021] AATA 1366

Hedari (Migration) [2021] AATA 1366 (25 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Syed Alamshah Hedari
VISA APPLICANTS:  Mrs Bibi Khadija Hedari
Miss Bibi Fatima Hedari
Mr Syed Ali Reza Hedari
Mr Syed Jawad Hedari
Mr Syed Murtaza Hedari
Mr Syed Mustafa Hedari
Mr Syed Waqar Hedari
CASE NUMBER:  2006188
HOME AFFAIRS REFERENCE(S):          2013/021188
MEMBER:Kira Raif
DATE:25 March 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 309 (Spouse (Provisional)) visas:
·Public Interest Criterion 4020 for the purposes of cl 309.225 of Schedule 2 to the Regulations

Statement made on 25 March 2021 at 12:20pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Federal Circuit Court remittal – bogus Afghani identity documents – tazkeras obtained in Pakistan – compassionate or compelling circumstances to waive criteria – lengthy separation from family – mental health issues – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl 309.225; Schedule 4 Public Interest Criterion 4020; r 1.03
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Mudiyanselage v MIAC [2012] FMCA 887
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42
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 and Border Protection on 28 February 2016 to refuse to grant the applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visas on 23 June 2013. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 309.225 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that she did not meet Public Interest Criterion (PIC) 4020. The sponsor (the review applicant) sought review of the delegate’s decision.
In April 2017 the Tribunal (differently constituted) affirmed the decision under review. The applicant sought judicial review of the delegate’s decision and the matter was remitted for reconsideration.
No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Relevant law
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 309.225 for the grant of the visa. Broadly speaking, this requires that:
·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information…

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 Hedari (Migration)

Details

AGLC: Hedari (Migration) [2021] AATA 1366
Case: [2021] AATA 1366
Decision Date: 25 March 2021

CaseChat Overview and Summary

The Federal Circuit Court considered an appeal by the applicants, Mr. and Mrs. Hedari, concerning their applications for Partner (Provisional) (Class UF) visas, specifically Subclass 309 (Spouse (Provisional)). The core of the dispute revolved around the validity of identity documents provided by the applicants, which were alleged to be "bogus" and obtained in Pakistan, and whether there were compassionate or compelling circumstances to waive certain visa criteria.

The primary legal issue before the Court was whether the applicants satisfied Public Interest Criterion (PIC) 4020 for the purposes of clause 309.225 of Schedule 2 to the Migration Regulations. This criterion relates to the provision of false or misleading information or documents, or the use of fraudulent documents, in support of a visa application. The Court also had to consider whether the circumstances presented by the applicants, including lengthy separation from family and mental health issues, constituted compassionate or compelling reasons to overlook any deficiencies.

The Court found that the applicants did satisfy PIC 4020. While acknowledging the issue with the tazkeras obtained in Pakistan, the Court's reasoning, as indicated by the decision, led it to conclude that this criterion was met. Consequently, the Tribunal was directed to remit the applications for reconsideration, with the specific direction that the first applicant meets PIC 4020 for the Subclass 309 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On the basis of the above, the visa applicants satisfy PIC 4020 for the purposes of cl 309.225.DECISION The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 309 (Spouse (Provisional)) visas:·Public Interest Criterion 4020 for the purposes of cl 309.225 of Schedule 2 to the Regulations Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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