Kinikar (Migration)

[2023] AATA 146

Kinikar (Migration) [2023] AATA 146 (23 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Dur E Sameen Ashraf Kinikar

CASE NUMBER:  1923535

HOME AFFAIRS REFERENCE(S):  BCC2018/5836265

MEMBER:Ian Berry

DATE:23 January 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Skilled Independent (Permanent) visa for reconsideration, with the direction that the applicant meets clause 187.311.

Statement made on 23 January 2023 at 2:52pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 187 (Skilled - Independent) – secondary applicant member of family unit – spouse – arranged marriage – substantial evidence and supporting documentation provided on review – two Australian citizen children – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5F, 65
Migration Regulations 1994 (Cth), rr 1.03, 1.12(2), 1.15A, Schedule 2, cl 189.311

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 Skilled Independent (Permanent) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 26 December 2018. The delegate refused to grant the visa on 9 August 2019 on the basis that the applicant did not satisfy the requirements of cl 189.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 189.311 of Schedule 2 relevantly requires the applicant to be a member of the family unit of Syed Irfanullah Azeezullah at the time of decision.

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

   Consideration of claims and evidence

4. The issue in this review is whether the applicant is a member of the family unit of Syed Irfanullah Azeezullah (primary applicant) and satisfies cl 189.311.

5. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (the Regulations). Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations.

6. Regulation 1.12(2) provides that a person is a member of the family unit of another person (the family head) if the person is:

   ·the spouse or de facto partner of the family head;

   ·a child or step-child of the family head or their spouse or de facto who is not engaged, or has a spouse or de facto partner and has not turned 18 or, if aged between 18 and 22 years of age is dependent on the family head (or partner), or if 23 years of age or older is wholly or substantially reliant on the family head (or partner) because they are incapacitated  for work due to loss of bodily or mental functions;

   ·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild).

7. In this instance, the applicant is claiming to be the spouse of Syed Irfanullah Azeezullah.

8. A person is a ‘spouse’ if they are in a ‘married relationship’ with the family head. ‘Spouse’ is defined by s 5F of the Act, which provides that: the couple must be married to each other in a marriage that is valid under the Migration Act; the couple must have a mutual commitment to a shared life as a married couple to the exclusion of all others; their relationship is genuine and continuing, and that the couple live together or do not live separately and apart on a permanent basis. The definition applies to same sex and different sex couples.

9. When considering whether the above requirements in s 5F are satisfied and the applicant is the spouse of the family head, the Tribunal may consider any of the circumstances outlined in reg 1.15A of the Regulations. These circumstances are the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons’ commitment to each other.

10. The Tribunal notes the applicant not engaging a migration representative which may explain the reason why limited information was provided to the Department.  Relevant information is detailed as follows:

    ·Marriage certificate dated 27 October 2018.

    ·Queensland Urban Utilities account due date 14 November 2018.

    ·Indian Industry of External Affairs Police Certificate issued 17 August 2018.

    ·Brisbane City Council rate notice due date 1 November 2018.

    ·Form 1221 additional personal particulars information dated 26 December 2018.

    ·Form 80 of the applicant dated 26 December 2018.

    ·Primary applicant’s passport.

    ·Department request for more information dated 18 March 2019.  The request related to the applicant’s tourist visa and evidence of the relationship with her spouse.

    ·Internet communications in a non-English language in the main.

    ·Testimonial by witness BE undated.

    ·Photographs of the primary applicant and applicant taken at the marriage ceremony.

    ·Affidavit of wedding attendant who says that he attended the wedding and believes the relationship to be genuine and continuing May 20 7 December 2018.

    ·Various airline tickets and conditions.

    ·Testimonial of Doctor BM undated.

    ·Affidavit of HMGK made 27 December 2018.

    ·Statement of the primary applicant undated.

    ·Further statement of the primary applicant dated 31 March 2019.

    ·Statement of the applicant’s brother undated.

    ·Statement of the applicant’s sister undated.

    ·The primary applicant’s consent to disclosure of information held by the Ministry of Justice New Zealand dated 22 January 2019.

    ·Decision record made 9 August 2019.

    ·Notice of assessment (NOA) of the ATO for the primary applicant, for years ending 30 June 2014, 30 June 2015, 30 June 2016, 30 June 2017 and 30 June 2018.

11. The applicant submitted further information supporting her application the relevant information is listed here under:

    ·Statement of Mr BE undated.

    ·Statement of MVJE dated 19 August 2019.

    ·Statement of the applicant undated.

    ·Several Internet communications with most communications in English.

    ·Bankwest statements dates undisclosed.

    ·Various tickets, airline schedules and airline departure tickets.

    ·Various wedding photographs previously supplied to the Department undated and without commentary.

    ·Statement of MK undated.

    ·Statement of the applicant dated 22 August 2019.

    ·Skype phone call and chat logs between the applicant, the primary applicant and their families most of which is in a language other than English.

    ·Affidavit of the primary applicant dated 2 January 2019.

    ·Various invoices or receipts in a foreign language probably Indian.

    ·The applicant’s passport.

    ·Exact Radiology document and card.

    ·QML Pathology receipt dated 26 July 2019.

    ·Brisbane City Council rate notice due date 1 November 2018.

    ·Departments decision record made 9 August 2019.

    ·Statement of JH undated.

    ·Statement of the primary applicant dated 22 August 2019.

    ·Statement of Sheriff ZB dated 20 August 2018.

    ·Various pieces of information relating to money exchange.

    ·Ultrasound result.

    ·Marriage certificate (India) on 27 October 2018.

    ·Statement of SH relating to the marriage of the primary applicant and applicant, from an Australian citizen who knows both applicants undated.

    ·Statement of the applicant dated 22 August 2019.

    ·Passport of the primary applicant.

    ·Exact radiology report 9 August 2019.

    ·Photographs with descriptive note and date of overseas trips and in Brisbane by the primary applicant and applicant.

    ·Statement by the applicant adding further commentary to her previous statements undated.

    ·Statement of the applicant’s brother undated.

    ·Statement of applicants other brother concerning his sisters relationship, undated.

    ·Copies of digital communications between the applicant and the primary applicant and family mostly in English.

    ·Statement of AAK cousin brother of the applicant commenting on the relationship between the applicant and the primary applicant dated 12 September 2019.

    ·Further photographs of the applicant and the primary applicant in the Fiji travel from 2 – 5 November 2019.

    ·Photographs of a car purchased and recently born the child.

    ·Birth certificate of child.

    ·DNAQ parentage testing procedure report.

    ·Australian Citizenship certificate of EAS born 10 January.

    ·Bundle of photographs of children of the applicant and the primary applicant with the a person who probably is the grandfather.

    ·Medical certificate relating to pregnancy dated 23 April 2021.

12. The evidence presented to the Tribunal was substantial and from witnesses who were in the position to be able to observe the applicant and primary applicant in Australia.  These witnesses consist of both Australian citizens and relatives of the couple.  It is observed by the Tribunal that it appears the motor vehicle purchased by the couple was placed in the name of the primary applicant as was the insurance.  Having regard to the family circumstances of now having 2 children it is not unusual for the couple to have the primary applicant to do most of the driving.

13. The evidence is that to the applicant and primary applicant were in and arranged married relationship which is, and what appears to be, a tradition in their country of origin India.  The couple married in India, with a statement by the applicant:

    ‘My marriage with Irfan was an arranged marriage where the family plays a lead role.  My cousin brother AAK had uploaded my profile to the above-mentioned matrimonial site which was liked by Irfan and his parents.  My cousin AAK later received email from Irfan’s dad which included Irfan’s marriage profile.  On receiving Irfan’s profile my cousin discussed about the marriage proposal with me and my family.  I and my family appreciated the proposal of Irfan.  To take the next steps my parents often communicated with Irfan and his parents through Skype video and audio calls.  As we spoke to Irfan and his parents, we gained familiarity and satisfaction.

    In December 2017 my brother FK travel to Brisbane, Australia to know more about Irfan and his parents at their home (address withheld by the Tribunal).  After the meeting my brother, FK was very happy with Irfan and to his parents.  My brother assured my parents to accept and go ahead with Irfan’s marriage proposal.  I and my parents had regular video calls with Irfan and his parents.

    On the 10 May 2018, Irfan’s parents, father and mother travelled to India to meet me and my parents at my home, where they had concluded the finer details of the marriage process.  As my parents were keen to finalise the details urgently so as to prepare for the wedding i.e., book the wedding venue, accommodation, catering, printing wedding invitations and delivering them to family and friends nationally and internationally, Irfan was unable to adjust his work commitments and travel with his parents at a short notice.  Thereafter, we frequently communicated through Skype with Irfan and his parents to make ourselves more comfortable with each other.  Following the finalisation of the marriage processes, myself and Irfan regular communicated on Skype.

    Finally, I and Syed Irfanullah Azeezullah got married on [in 2018] in India.

    22 August 2019 signed by the applicant.’

14. The primary applicant’s Form 80 discloses the details of his residences and movements.  He is a professional person earning an income within the computer industry.  He now, with her the primary applicant, have 2 children both of which are Australian citizens.

15. The Tribunal has read the delegate’s decision and understands the reason for that decision as the applicant did not have a full grasp of the matters which needed to be attended upon to satisfy the Department of the criteria required for the delegate to make an informed decision.  Certainly, upon the matter proceeding to the Tribunal, substantial information has been received all of which supports the relationship between the applicant and the primary applicant.

16. Accordingly, the applicant now meets cl 189.311.

    decision

17. The Tribunal remits the application for a Skilled Independent (Permanent) visa for reconsideration, with the direction that the applicant meets clause 187.311.

    Ian Berry
    Member

    1.12    Member of the family unit

    (1)This regulation has effect for the purposes of the definition of member of the family unit in subsection 5(1) of the Act.

    General rule

    (2)A person is a member of the family unit of another person (the family head) if the person is:

    (a)      a spouse or de facto partner of the family head; or

    (b)     a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de factor partner) and:

    (i)has not turned 18; or

    (ii)has turned 18, but has not turned 23 and is dependent on the family head or on the spouse or de facto partner of the family head; or

    (iii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

    (c)      is a dependent child of a person who meets the conditions in (b).

    This subregulation has effect subject to the later subregulations of this regulation.

    …