Khadimi (Migration) - [2022] AATA 116

Khadimi (Migration) [2022] AATA 116 (13 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Mohammad Zaki Khadimi
VISA APPLICANT:  Ms Maryam Khadimi
REPRESENTATIVE:  Mr Besmellah Rezaee
CASE NUMBER:  1836354
HOME AFFAIRS REFERENCE(S):          OSF2013/023391
MEMBER:Meredith Jackson
DATE:13 January 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the applicant meets the following criteria for a 309 (Spouse (Provisional)) visa:
· cl 309.311

Statement made on 13 January 2022 at 2:44pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – member of the family unit – dependent relative of the primary applicant – financially dependent greater upon the sponsor than the primary applicant – primary applicant’s finances supplemented by the sponsor – income from private students – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 309.311; rr 1.03, 1.05, 1.12

CASES

Huynh v MIMA [2006] FCAFC 122

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 Home Affairs to refuse to grant the applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 30 June 2013. The delegate refused to grant the visa on 8 October 2018 on the basis that the applicant did not satisfy the requirements of cl 309.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 309.311 of Schedule 2 relevantly requires the applicant to be a member of the family unit of the family head, in this case the primary applicant, Parween Khadimi, at the time of application and decision.

3. The review applicant appeared before the Tribunal on 10 January 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in Pakistan and the review applicant’s spouse. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

4. The review applicant was represented in relation to the review.

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

BACKGROUND

6. The review applicant is Mohammad Zaki Khadimi, born in Afghanistan in1987 and an Australian citizen by grant. The primary visa applicant is Parween Khadimi, born in Afghanistan in1991 and a resident of Australia since 25 December 2018. She was granted a subclass Partner (migrant) (Class BC) Partner (Subclass 100) visa on 1 November 2018. The secondary applicant and the subject of this review is Maryam Khadimi, born in Afghanistan in 1957. Maryam Khadimi was included in the application for the combined Partner (Class UF/BC) subclass 309/100 visa of 30 June 2013. Secondary applicant Mina Khadimi, the daughter of Mohammad and Parween Khadimi, was also granted a subclass 100 partner visa on 1 November 2018.…

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 Khadimi (Migration)

Details

AGLC: Khadimi (Migration) [2022] AATA 116
Case: [2022] AATA 116
Decision Date: 13 January 2022

CaseChat Overview and Summary

The applicant, Mr Khadimi, sought judicial review of a decision by the Minister for Immigration and Border Protection to refuse his Partner (Provisional) visa (subclass 309). The primary applicant for the visa was Mr Khadimi's wife, Ms Khadimi, who was applying for the visa on the basis of her relationship with her sponsor. Mr Khadimi was seeking to be included as a dependent relative of Ms Khadimi. The Administrative Appeals Tribunal had affirmed the Minister's decision to refuse the visa. The matter came before Meredith Jackson J in the Federal Circuit and Family Court of Australia.

The central legal issue before the court was whether Mr Khadimi qualified as a "member of the family unit" for the purposes of the visa application, specifically whether he was a "dependent relative" of Ms Khadimi. This required the court to consider the meaning of "financially dependent" in the context of the Migration Regulations 1994 (Cth) and the relevant policy guidelines. The court also had to determine if the Tribunal had erred in its assessment of the financial dependence of Mr Khadimi on Ms Khadimi, particularly in light of the fact that Mr Khadimi's financial situation was supplemented by the sponsor and that Ms Khadimi's income was derived from private students.

Meredith Jackson J found that the Tribunal had made an error of law in its assessment of financial dependence. Her Honour held that the Tribunal had failed to properly consider the evidence regarding the extent of Mr Khadimi's financial dependence on Ms Khadimi, including the fact that Ms Khadimi's finances were supplemented by the sponsor. The Tribunal's approach of comparing Mr Khadimi's dependence on Ms Khadimi with Ms Khadimi's dependence on the sponsor was found to be an incorrect application of the relevant criteria. The court applied the principle that financial dependence is a question of fact and degree, and that all relevant financial circumstances must be considered.

The court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders