MUSAWI (Migration) - [2018] AATA 1045

MUSAWI (Migration) [2018] AATA 1045 (19 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs HOSNIAH BIBI MUSAWI
VISA APPLICANT:  Miss MASOMA BIBI HUSSEINI
CASE NUMBER:  1605278
DIBP REFERENCE(S):  2012/000390
MEMBER:Kira Raif
DATE:19 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:
·Public Interest Criterion 4020 for the purposes of cl.117.223 of Schedule 2 to the Regulations.

Statement made on 19 March 2018 at 4:48pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) visa – Bogus documentation – False identity document – Compelling circumstances – Australian permanent residents – Family are settled in Australia – No previous records of breaches of cl 4020(2A)
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994 r 1.03 Schedule 2 cl 117.223 Schedule 4 Criteria 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Mudiyanselage v MIAC [2013] FCA 266
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42
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 2 March 2016 to refuse to grant the applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant is a national of Afghanistan, born in December 1996. She applied for the visa on 29 May 2012. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.117.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the visa applicant met the Public Interest Criterion (PIC) 4020. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.
The review applicant appeared before the Tribunal on 8 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse and son. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The review applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Relevant law
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.117.223 for the grant of the visa. Broadly speaking, this requires that:
·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before…

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: MUSAWI (Migration) [2018] AATA 1045
Case: [2018] AATA 1045
Decision Date: 19 March 2018

CaseChat Overview and Summary

The applicant sought judicial review of a decision by the Migration Review Tribunal (MRT) concerning an application for a Subclass 117 (Orphan Relative) visa. The core of the dispute revolved around the applicant's compliance with Public Interest Criterion (PIC) 4020, which relates to the provision of bogus documentation or false identity documents.

The primary legal issue before the Tribunal was whether the applicant satisfied PIC 4020 in relation to their visa application. This required the Tribunal to consider the implications of the applicant having provided a false identity document and whether compelling circumstances existed to excuse this failure, particularly in light of the applicant's family being settled in Australia and having no prior record of breaches of clause 4020(2A).

The Tribunal found that the applicant did satisfy PIC 4020 for the purposes of the Subclass 117 visa. The decision indicates that the Tribunal considered the applicant's circumstances, including the presence of their family in Australia and the absence of previous breaches, as compelling reasons to overlook the provision of the false identity document. Consequently, the Tribunal remitted the application for reconsideration with a direction that the applicant meets the relevant criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl.117.223.DECISION The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:·Public Interest Criterion 4020 for the purposes of cl.117.223 of Schedule 2 to the Regulations.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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