Mohammed (Migration) - [2023] AATA 3076

Mohammed (Migration) [2023] AATA 3076 (14 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Mohammed Mohammed
VISA APPLICANTS:  Mrs Eftu Abdurezak Mohammed
Master Mohammed Kedir Abdurazak
Master Abdunaser Kedir Abdurazak
Master Abdurazak Kedir Abdurazak
Master Bahar Kedir Abdurazak
Miss Monan Adnan Amin
Miss Fenan Adnan Amin
REPRESENTATIVE:  Dr Abeba Gebreselassie (MARN: 1791364)
CASE NUMBER:  1917656
DIBP REFERENCE(S):  BCC2018/1729957
MEMBER:Anne Grant
DATE:14 September 2023
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:
·Public Interest Criterion 4020 for the purposes of cl 309.225 of Schedule 2 to the Migration Regulations.

Statement made on 14 September 2023 at 11:59am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – bogus document – school records – member of the family unit – compassionate or compelling circumstances – financial hardship and business disruption – awareness of each other’s financial position – regular travel to Ethiopia – care for orphaned children – genuine and continuing relationship – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 309.225; Schedule 4, Public interest Criterion 4020
CASES
Plaintiff M64/2015 v MIBP [2015] HCA 50
Singh v MIMAC [2013] FCCA 1435
Sun v MIBP [2015] FCCA 2479
Sun v MIBP [2016] FCAFC 52
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 21 June 2019 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The first named visa applicant (referred to as the primary applicant) applied for the visa on 19 April 2018 on the basis of their relationship with their sponsor, the review applicant (referred to as the sponsor). 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 who are applicants for the visa need satisfy only the secondary criteria.
The sponsor appeared before the Tribunal on 25 August 2023 by video conference using the Microsoft Teams Application. The sponsor was originally invited to attend the hearing in person but on 4 August 2023 his representative advised the Tribunal that he was overseas visiting the primary applicant and they would both like to participate remotely in the hearing. The hearing was converted to a video conference as a result. The review applicant and the visa applicant both participated in the hearing by video using the Microsoft Teams application and gave evidence separately with the assistance of an Amharic interpreter.
The sponsor was represented in relation to…

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 Mohammed (Migration)

Details

AGLC: Mohammed (Migration) [2023] AATA 3076
Case: [2023] AATA 3076
Decision Date: 14 September 2023

CaseChat Overview and Summary

This matter concerned an appeal by the applicant against a decision to refuse a Partner (Provisional) (Class UF) visa. The core of the dispute revolved around the authenticity of school records submitted to support the claim that secondary applicants were members of the primary applicant's family unit. The Administrative Appeals Tribunal was tasked with determining whether the applicant had provided a bogus document or false information, and if so, whether compelling or compassionate circumstances justified granting the visa and waiving the relevant public interest criteria.

The Tribunal was required to consider two primary issues. Firstly, whether there was any evidence that the applicant had provided a bogus document or false or misleading information in relation to the visa application. Secondly, if such evidence existed, whether there were compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, permanent resident, or eligible New Zealand citizen, that would justify granting the visa and waiving the requirements of Public Interest Criterion 4020.

The Tribunal found that school records submitted for one of the secondary applicants, Abdunaser Kedir Abdurazak (AKA), were not genuine, as confirmed by the school itself. While the applicant responded to this adverse information, asserting the document's authenticity and suggesting a school error, the Tribunal was not satisfied that the document was genuine. Consequently, the Tribunal concluded that the applicant had failed to satisfy the requirements of Public Interest Criterion 4020. However, the Tribunal remitted the applications for reconsideration by the Minister, with a direction that the first named visa applicant met the criteria for a Subclass 309 visa, implying that the remaining criteria would be assessed in light of the findings regarding the bogus document.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issues in the present case are: · whether there is ‘no evidence’ that the applicant has given, or caused to be given a bogus document or information that is false or misleading in a material particular in relation to the application for the visa; and if there is such evidence;· whether there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa and the waiver of the requirements in PIC 4020(1)(a) or (b) and /or subclause(2).Is there evidence that the applicant has given or caused to be given a bogus document or information that is false or misleading in a material particular? According to the departmental file, the primary applicant lodged school records for some of the secondary applicants with the applications for the visas, including one for Abdunaser Kedir Abdurazak (AKA). The purpose of this information was to support the primary applicant’s claim that the secondary applicants (her daughters and nephews) were members of the primary applicant’s family unit, a criteria which must be satisfied for the grant of a visa to a secondary applicant in the circumstances of this application. According to the departmental information, a physical check of the school records was conducted for two of the secondary applicants on 27 December 2018 through representatives in Ethiopia. The school confirmed that the school records and information provided for one of the primary applicant’s daughters were genuine, but the school advised the departmental representative that the document relating to AKA did not originate from the school as claimed and that that applicant was not known to the school. On 30 January 2019, the primary applicant was invited to respond to this adverse information and on 27 February 2018 she responded as follows: “……….I refer to your letter dated 30 of January 2019 regarding adverse information and Iwould like to make things clear as followsYou have stated that you have contacted the school in Adama, and that the Schooldocument I have submitted for [AKA] did not originate from Naafyaad school. I was really shocked to hear this and would like to reaffirm that the documentprovided was not fraudulent and it was originated from the school.I approached the school upon hearing this news from you, I was socked and as the sametime got sick. Up on approaching the school they had to do their won investigation as whatwent wrong and did apologize to me for failing to provide the right information when askedby the body concerned. It is their responsibility the way they manage their files or keep theirdata. They have however reassured me that they would do what ever it takes to make surethat this will never happen again.I have been provided with a letter from the same school explaining what happened andapology as well.I am 100 % sure that I was given the document from that school and providing a bogusdocument would lead to refusal of my application. I want you to believe me and also recheck the document at your convenience or call the school and ask for more information. Ido apologize for the inconvenience this has caused and I hope this information may help. Itdoesn’t also make sense that only Abdunaser’s document is the only one missing out of theall the children, he is my nephew as the others and it was just a mistake.I do beseech your co-operation to double check the authenticity of the document of the school and the nature of the check………..”

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.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:·Public Interest Criterion 4020 for the purposes of cl.309.225 of Schedule 2 to the Regulations.Anne GrantMember

Ratio Decidendi

Legal Principle Established

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