JUANA (Migration) - [2019] AATA 4292

JUANA (Migration) [2019] AATA 4292 (4 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Joseph JUANA
VISA APPLICANTS:  Mrs Nafisatu Kassim
Miss Fatima Kassim
Mr Ibrahim Koroma
Miss Isatu Koroma
CASE NUMBER:  1729728
DIBP REFERENCE(S):  BCC2014/2617973
MEMBER:Kira Raif
DATE:4 October 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 04 October 2019 at 8:27am

CATCHWORDS
MIGRATION – refusal – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – Public Interest Criterion – false or misleading information – bogus document – court adoption order –– new, genuine document obtained – waiver of requirements – no compassionate or compelling circumstances for waiver – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 309.225, Schedule 4, Public Interest Criterion 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Chan v MIBP [2017] FCCA 2893
Kaur v MIBP [2017] FCAFC 184
Mudiyanselage v MIAC (2013) 211 FCR 27
Plaintiff M64/2015 v MIBP [2015] HCA 50
Sidhu v MIBP [2014] FCCA 167
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 on 11 April 2017 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants are nationals of Sierra Leone. The first named visa applicant (‘the visa applicant’) was born in November 1985. She applied for the visas on 7 October 2014. The application includes the visa applicant’s children. The delegate refused to grant the visas on the basis that the visa applicant did not satisfy the requirements of cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the visa applicant did not meet Public Interest Criterion (PIC) 4020.
The sponsor (‘the review applicant’) sought review of the delegate’s decision in May 2017. In July 2017 the Tribunal (differently constituted) affirmed the decision under review. The review applicant sought judicial review and the Tribunal’s decision was set aside by the Court.
The review applicant appeared before the Tribunal on 30 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Relevant law
The issue in this review is whether the visa applicant meets 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 visa 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…

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: JUANA (Migration) [2019] AATA 4292
Case: [2019] AATA 4292
Decision Date: 4 October 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for Partner (Provisional) (Class UF) visas, subclass 309, made by the applicant and secondary applicants. The core of the dispute concerned the applicant's failure to satisfy Public Interest Criterion (PIC) 4020, which relates to the provision of false or misleading information or bogus documents.

The Tribunal was required to determine whether the applicant met the requirements of PIC 4020, specifically in relation to a document that was initially provided but later replaced with a new, genuine document. The Tribunal also had to consider whether there were compassionate or compelling circumstances to justify a waiver of the requirements of PIC 4020, and whether the secondary applicants met the criteria under clause 309.321.

The Tribunal found that the applicant did not satisfy PIC 4020 because a bogus document had been presented. While a new, genuine document was subsequently obtained, the Tribunal determined that there were no compassionate or compelling circumstances that warranted a waiver of the PIC 4020 requirements. Consequently, the Tribunal affirmed the decision not to grant the Partner (Provisional) visas to the applicant and secondary applicants.

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 applicant does not satisfy PIC 4020 for the purposes of cl.309.225. The secondary applicants do not meet cl. 309.321. DECISION The Tribunal affirms the decision not to grant the visa applicants Partner (Provisional) (Class UF) visas.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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