Khatery (Migration) - [2019] AATA 3679

Khatery (Migration) [2019] AATA 3679 (4 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Ferozah KHATERY
VISA APPLICANTS:  Mrs Tahira Ahmad KHATERY
Miss Sabira KHATERY
Miss Roya KHATERY
Miss Zahra KHATERY
Miss Nargis KHATERY
Miss Kawsar KHATERY
CASE NUMBER:  1702786
DIBP REFERENCE(S):  BCC2015/274287 OSF2014022860
MEMBER:Mireya Hyland
DATE:4 July 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.31 of Schedule 2 to the Regulations
·cl.309.321 of Schedule 2 to the Regulations

Statement made on 04 July 2019 at 8:47pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional) – family unit – applicants rely on relative for financial support to meet basic needs – sole source of support went missing – high risk of reprisal for Afghan female workers – document fraud – decision under review remitted

LEGISLATION
Marriage Act 1961 (Cth), s 88D(3)
Migration Act 1958 (Cth), ss 5, 65, 499
Migration Regulations 1994 (Cth), rr 1.03, 1.05A, 1.12, 2.03A(2), Schedule 2, 300.311, 309.312, 309.321

CASES
Hafza v Director General of Social Security(1985) 6 FCR 444
Huynh v MIMA [2006] FCAFC 122
Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation (1941) 64 CLR 241
Re Taylor (1992) 37 FCR 194
Thompson v MIAC [2009] FMCA 1210

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 18 December 2016 to refuse to grant the visa applicants, Mrs Tahira Ahmad Khatery and her daughters, Sabira, Roya, Nargis, Zahra and Kawsar Khatery, Partner (Provisional) (Class UF) Subclass 309 visas under s.65 of the Migration Act 1958 (the Act).
Mrs Khatery and her five daughters applied for the visas on 29 December 2014 based on her son’s, Mohammad Sabir Khatery’s, marriage to his sponsor, Ms Ferozah Khatery. At that time, Class UF contained one subclass: Subclass 309 (Partner) (Provisional). The criteria for the grant of the visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). On 7 December 2016, the delegate granted Mr Khatery a Subclass 309 visa. Mrs Khatery’s and her daughter’s visas were refused on the basis that they did not satisfy cl.300.311 because they were not dependent on, and, therefore, members of the family unit of, Mr Khatery. Ms Khatery applied to the Tribunal for review of the decision on 17 February 2017.
The delegate interviewed Mr and Ms Khatery on 4 October 2016 by telephone. Ms Khatery, who currently resides in Afghanistan, appeared before the Tribunal by telephone on 27 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Khatery and a cousin, Mr Abdul Ahmed Ali Mohammad. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.…

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 Khatery (Migration)

Details

AGLC: Khatery (Migration) [2019] AATA 3679
Case: [2019] AATA 3679
Decision Date: 4 July 2019

CaseChat Overview and Summary

This matter concerned an appeal by Mrs Khatery and her daughters against a decision regarding their application for a Partner (Provisional) (Class UF) visa, Subclass 309. The central dispute revolved around whether Mrs Khatery and her daughters constituted a "family unit" in relation to Mr Khatery, who was relying on his relative for financial support to meet basic needs. The case was heard by Mireya Hyland.

The legal issues before the Tribunal were whether Mrs Khatery and her daughters were members of Mr Khatery’s family unit for the purposes of the visa application, and consequently, whether the applicants could satisfy the criteria for a Subclass 309 visa. This involved assessing the familial relationships and the financial support arrangements in light of the circumstances of the applicants' family in Afghanistan.

The Tribunal considered evidence regarding the disappearance of Mr Ali, the family's sole source of financial support, and the subsequent assumption of this role by Mr Khatery. It noted the applicants' Shia Hazara ethnicity and the risks of reprisal faced by Afghan female workers, as well as concerns about document fraud relating to Mr Ali's alleged appearance as a witness on a marriage certificate. Given the complexities and the need for further consideration of the remaining visa criteria, the Tribunal concluded that the decision under review should be remitted.

The Tribunal remitted the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicants meet the criteria set out in cl.309.31 and cl.309.321 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issue in the present case is whether Mrs Khatery and her daughters are members of Mr Khatery’s family unit. For the following reasons, the Tribunal has concluded that the decision under review should be remitted. CONSIDERATION OF CLAIMS AND EVIDENCE The Khaterys, who are Shia Hazaras, are citizens of Afghanistan from Parwan province who have lived in Kabul since 2004. Mr Khatery is Mrs Khatery’s oldest child, born in 1992. DNA tests show that Mrs Khatery’s daughters Sabira (born in 1999), Roya (born in 2001), Nargis (born in 2002), Zahra (born in 2007), and Kawsar (born in 2013) are all Mr Khatery’s sisters. Sabira’s twin sister, Alina, also applied for a Subclass 309 visa that was refused and was initially part of this review application, however she withdrew from the review application when she married in 2018. Mrs Khatery’s husband, Ahmad Ali, owned a clothing shop in Kabul and was the family’s sole source of support prior to his disappearance in 2013. According to Mr Khatery, Mr Ali was traveling from Kabul to his home village in the Turkman Valley, Parwan in his car when he went missing. Mr Khatery told the Tribunal that the Hazara area in Parwan where Mr Ali was going, which would have been on the way to and at the very outermost edge of the Hazarajat,[1] is surrounded by Pashtun areas and Hazaras in Afghanistan are discriminated against. When Mr Ali failed to return to Kabul, Mr Khatery checked to see if he had arrived in the village and, finding that he had not, contacted the police in that area. The police said they did not have any information about an incident on the road, but would contact Mr Khatery if they found out anything. They did not contact Mr Khatery. After Mr Ali’s disappearance Mr Khatery took over the clothing shop and became the sole source of support for his mother and sisters. Mr Mohammad also gave evidence at the hearing about his personal experiences related to Mr Ali’s disappearance.[1] The traditional homeland of the Hazaras is the Hazarajat, a mountainous region consisting of the provinces of Bamiyan and Daykundi and parts of the provinces of Ghazni, Ghor, Uruzgan and Wardok: DFAT, Country Information Report Afghanistan, 31 July 2013, section 2.3; the western edge of Parwan province, which is predominately Pashtun, sits next to Bamiyan province. According to the delegate’s decision, Mr Ali appears as a witness attesting to the marriage of Ms Khatery’s brother, Jawed Ali Khatery, with a thumb print on the marriage certificate dated 28 September 2014. Jawed Ali Khatery confirmed to the Department of Home Affairs (DOHA) during an interview for his wife’s partner visa on 16 November 2016 that Mr Ali appeared as a witness on their marriage certificate. Mr and Ms Khatery told the delegate that Jawed Ali Khatery used a photograph of Mr Ali, together with his property ownership paperwork, and someone else placed his thumbprint on the certificate. When asked about any deeds that might exist for the house owned by Mr Ali, Mr Khatery told the Tribunal that there was no property ownership paperwork. Everyone in the area knows that Mr Ali owned the house where the Khaterys live and that the property now belongs to Mr Khatery.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visas 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 applicants meet the following criteria for a Subclass 309 (Partner (Provisional)) visa:·cl.309.31 of Schedule 2 to the Regulations·cl.309.321 of Schedule 2 to the RegulationsMireya HylandMember

Ratio Decidendi

Legal Principle Established

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