KAZEMI (Migration) - [2021] AATA 4107

KAZEMI (Migration) [2021] AATA 4107 (22 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Sayed Alamshah KAZEMI
VISA APPLICANTS:  Mr Sayed Sardar KAZEMI
Mr Sayed Mustafa KAZEMI
CASE NUMBER:  1832261
DIBP REFERENCE(S):  2013/022836 OSF2013/022836
MEMBER:John Longo
DATE:22 October 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl 309.311 of Schedule 2 to the Regulations
·cl 309.321 of Schedule 2 to the Regulations

Statement made on 22 October 2021 at 9:33am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – member of the family unit – wholly or significantly financially reliant upon the primary visa applicant – adopted children of the sponsor – money transfers – family head – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 309.221, 309.311, 309.321; rr 1.05, 1.12
CASES
Al Naqi v Minister for lmmigration and Citizenship & Anor [2007] FMCA 874
Fusi v MIAC [2012] FMCA 1037
Huang v MIMA [2007] FMCA 720
Huynh v MIMA [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 September 2018 to refuse to grant the secondary visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (the Act).
The primary visa applicant applied for the visa on 30 June 2013 on the basis of her relationship with the 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 secondary visa applicants the visas on the basis that they did not satisfy cl 309.311 because the delegate was not satisfied that the secondary visa applicants were wholly or significantly financially reliant upon the primary visa applicant. In cumulative consideration of the above information, they were not satisfied the visa applicants are ‘members of the family unit’ of the primary visa applicant and did not satisfy the criteria set out in reg 309.311.
The review applicant appeared before the Tribunal on 4 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Bibi Rukhshana Kazemi, who is the review applicant’s partner (and the primary visa applicant). The Tribunal exercised its discretion to hold the hearing by telephone hearing. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard…

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: KAZEMI (Migration) [2021] AATA 4107
Case: [2021] AATA 4107
Decision Date: 22 October 2021

CaseChat Overview and Summary

This matter concerned an appeal before the Administrative Appeals Tribunal regarding Partner (Provisional) (Class UF) visas, specifically Subclass 309. The primary applicant, Mrs Bibi Rukhshana Kazemi, sought a visa, and the secondary applicants, Mr Sayed Sardar Kazemi and Mr Sayed Mustafa Kazemi, who are the sponsor's adopted children, were included in her application. The central dispute revolved around whether the secondary applicants qualified as members of the family unit of the primary applicant, specifically whether they were wholly or significantly financially reliant on her, who was considered the head of the household.

The Tribunal was required to determine if the secondary visa applicants met the criteria for being a member of the family unit as defined in regulation 1.12(1) and being dependent as defined in regulation 1.05A(1) of the Migration Regulations 1994. This involved assessing whether they were relatives of the family head or their spouse, did not have a spouse or de facto partner, were usually resident in the family head’s household, and were dependent on the family head. The Tribunal also considered the requirements of clauses 309.311 and 309.321, which stipulate that a secondary applicant must be a member of the family unit at the time of application and at the time of decision.

The Tribunal noted that the secondary applicants were the sponsor's adopted children and were normally resident in the primary applicant's household, of which she was the head. While the familial relationship was acknowledged, the delegate had previously found insufficient evidence of financial dependency on the primary applicant, noting that the sponsor was financially supporting the primary applicant. The secondary applicants had been given opportunities to provide evidence of their dependency but had only submitted a Form 80 and photographs. The Tribunal concluded that the matter should be remitted for reconsideration, directing that the first named visa applicant met the criteria for a 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

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE As it is apparent from identification documents and other evidence that the secondary visa applicants are the nephews of the sponsor and are normally resident in the primary visa applicant’s household of which is she is head, the issue in the present case is whether the visa applicants were and are dependent on the family head as defined in reg 1.05A. Clause 309.311 requires a secondary visa applicant to be a member of the family unit of the primary visa applicant at the time of application. Clause 309.321 requires a secondary visa applicant to continue to be a member of the family unit at the time of decision. Regulation 1.12(1) defines ‘member of the family unit’ and reg 1.05A(1) defines ‘dependent’. In assessing whether the secondary visa applicant meets the definition of a member of the family unit of the primary visa applicant as required in cl 309.311, the secondary visa applicant must be 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 The delegate noted that:·The secondary visa applicants are claimed to be the sponsor’s nephews. It is therefore acknowledged that the claimed familial relationships fall under the definition of relative as set out in the reg 1.12(1)(e). ·It is further claimed that the secondary visa applicants lived with and are dependent on the primary visa applicant under the meaning of the Regulations.·The secondary visa applicants declared to never have been married or been in a de facto relationship and that their dependence on the primary visa applicant has been in existence for a substantial period immediately before the lodgement of the application. ·The primary visa applicant had declared on departmental forms for this application that she has never been employed. It is further consistently claimed that the primary visa applicant is also financially reliant on the sponsor for all of her and the secondary visa applicants’ daily needs. ·On 21 January 2018 and 15 March 2018, the secondary visa applicants were afforded opportunities to provide evidence of their dependency to the primary visa applicant. However, the secondary visa applicants only provided a Form 80 and photographs in response to this request. No other relevant information was received in relation to their dependency claims. ·The delegate noted there was no information before them to demonstrate that financial support has been at any stage provided by the primary visa applicant to the secondary visa applicants and gave significant weight to the evidence provided by the sponsor indicating that he was financially supporting the primary applicant since he arrived in Australia. The relevant familial relationships are as follows:·Mr Sayed Sardar Kazemi, aged 27 – secondary applicant·Mr Sayed Mustafa Kazemi, aged 26 – secondary applicant(These applicants are adopted children of the sponsor)·Mrs Bibi Rukhshana Kazemi, aged 37 – primary applicant ·Mr Sayed Alamshah Kazemi, aged 59 – sponsor(The sponsor is married to Mrs Bibi Rukhshana Kazemi, the primary applicant)

Decision

Reasons for decision

The Tribunal is satisfied that the secondary visa applicants made a combined application with the primary applicant, who satisfied the primary criteria in reg 309.221 and was granted a subclass 309 Partner (Provisional) visa. Accordingly, the secondary visa applicants satisfy the requirements of cl 309.311 and cl 309.321.DECISION The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:·cl 309.311 of Schedule 2 to the Regulations·cl 309.321 of Schedule 2 to the Regulations John LongoMember

Ratio Decidendi

Legal Principle Established

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