Kahsay (Migration) - [2019] AATA 4631

Kahsay (Migration) [2019] AATA 4631 (15 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Goitom Asmelash Kahsay
VISA APPLICANT:  Miss Meron Werkeluel KASSA
CASE NUMBER:  1705466
DIBP REFERENCE(S):  OSF2016/046571
MEMBER:Margie Bourke
DATE:15 July 2019
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 15 July 2019 at 2:04pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – secondary applicant member of primary applicant’s family unit – reliant on primary applicant for financial support to meet basic needs for food, clothing and shelter – secondary applicant not in spousal or de facto relationship – evidence of parent’s death certificates provided – guardianship order – inconsistent evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 362A
Migration Regulations 1994 (Cth), rr 1.03, 1.05A, 1.12, Schedule 2, cls 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 2 February 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 5 January 2016 on the basis of her relationship with her 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 secondary visa applicant did not satisfy cl.309.311 because the delegate was not satisfied that the secondary visa applicant was a member of the family unit of the primary visa applicant.
The review applicant appeared before the Tribunal on 13 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the primary visa applicant who attended the hearing, two friends of the review applicant who attended the hearing, and the visa applicant who gave evidence via telephone. The tribunal hearing was conducted was assistance with an interpreter in the Tigrinya and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the secondary visa applicant meets the requirements of cl.309.311.
Secondary Visa Applicant
Cl.309.311 requires that at the time of application the secondary visa applicant is a member of the family…

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 Kahsay (Migration)

Details

AGLC: Kahsay (Migration) [2019] AATA 4631
Case: [2019] AATA 4631
Decision Date: 15 July 2019

CaseChat Overview and Summary

This matter concerned a Partner (Provisional) (Class UF) visa, subclass 309, where the secondary applicant, Meron, sought to establish she was a member of the primary applicant, Zayd's, family unit. The dispute centred on whether Meron met the criteria for inclusion as a secondary applicant, specifically whether she was dependent on Zayd and usually resident in Zayd's household, given they claimed to be biological sisters. The decision was made by Margie Bourke of the Tribunal.

The primary legal issue before the Tribunal was whether Meron qualified as a member of Zayd's family unit under regulation 1.12(1) of the Migration Regulations 1994. This required Meron, as a sibling, to be a relative of Zayd, who was the family head, and to be dependent on Zayd and usually resident in Zayd's household, as Zayd did not have a spouse or de facto partner. The Tribunal also had to consider the evidence presented regarding the death of the applicants' parents, which was crucial for establishing dependency.

The Tribunal found that Meron and Zayd were siblings and close relatives based on birth certificates and the applicants' willingness to undergo DNA testing, although the latter was not pursued due to its limitations in the absence of parents. The Tribunal accepted evidence that the applicants' mother died in 2005 and their father in 2007, noting inconsistencies in the medical report concerning the mother's cause of death. Despite these inconsistencies, the Tribunal was satisfied that the visa applicants were siblings and close relatives. However, due to the remaining criteria for the visa not being fully considered, the Tribunal remitted the application for reconsideration.

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 issue in the present case is whether the secondary visa applicant meets the requirements of cl.309.311. Secondary Visa Applicant Cl.309.311 requires that at the time of application the secondary visa 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. Based on the application and sponsorship forms the secondary visa applicant made a combined application with the primary visa applicant. Based on the evidence that the primary visa applicant attended the hearing and is the holder of a current 309 visa, I am satisfied that met the criteria for a subclass 309 visa, including the primary criteria in Subdivision 309.21. The issue to be determined in this review is whether the secondary visa applicant, Meron, is a member of the primary visa applicant, Zayd’s family unit at the time of application. The application for the visa was made on 5 January 2016. The visa applicant’s claim they are biological sisters. To meet the requirements of r.1.12(1), as siblings, Meron would be required to meet r.1.12(1)(e) and be a relative of the [family head or of a spouse or de facto partner of the family head] Zayd, (i) does not have a spouse or de facto partner; (ii) is usually resident in [the family head’s] Zayd’s household; and (iii) is dependent on [the family head] Zayd. Prior to the hearing the review applicant provided to the tribunal birth certificates in relation to Meron and Zayd which recorded their parents. In answer to an inquiry from the tribunal prior to the hearing the review applicant advised the visa applicants were willing to participate in DNA testing to establish their relationship. As DNA testing between siblings in the absence of their parents is not 100% conclusive the tribunal did not pursue this process. However, I am satisfied the visa applicants are siblings, and close relatives within the meaning of r.1.03 based on the information available to me. The review applicant provided the Department and the tribunal with ‘evidence of death certificates’ of both parents of the visa applicants. The review applicant gave evidence that a death certificate is the same document as evidence of a death certificate. The review applicant claims the visa applicants’ mother died in hospital in 2005 of asthma related illness, and their father died at home of illness in 2007. The review applicant provided a detailed report from the Black Lion Hospital, Addis Ababa in relation to the mother’s illness and death. This report referred to the visa applicant’s mother as 35 year old known asthmatic, amongst technical terms, referred to her cardiac problems, sepsis and TB, but did not directly refer to ongoing asthma. Zayd stated in her evidence that her mother had ongoing medical conditions but her last illness was asthma. Zayd stated she did not know why the report did not refer to asthma. The review applicant stated his knowledge of the woman’s death was provided by the visa applicants. The report records the woman was treated for TB (lung) and was an inpatient for a month, and did not respond to treatment. I accept the written and oral evidence that the visa applicant’s mother died of a lung related illness after admitted to hospital and treated unsuccessfully in hospital in the Ethiopian calendar year of 1997, which is the equivalent of the Gregorian calendar year of 2005.

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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