Nadiri (Migration)

[2017] AATA 2855

Nadiri (Migration) [2017] AATA 2855 (12 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ali Baba Nadiri

VISA APPLICANTS:  Miss Shaima NADERI
Miss Fatima NADERI

CASE NUMBER:  1710578

DIBP REFERENCE(S):  BCC2016/2127867

MEMBER:Justin Meyer

DATE:12 October 2017

PLACE OF DECISION:  Melbourne

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.309.324 of Schedule 2 to the Regulations

Statement made on 12 October 2017 at 1.58pm

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Sponsor’s biological children – Dependent child

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.05A, 1.12, Schedule 2, cls 309.311, 309.324

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 Immigration on 14 May 2017 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) applied for the visa on 22 June 2016 on the basis of their relationship with their sponsor, the review applicant. 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, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the secondary criteria includes cl.309.311 and cl.309.324.

3. The delegate refused to grant the visa on the basis that the visa applicants did not satisfy cl.309.311 because she was not satisfied that Secondary Applicant 1 and 2 were dependent (as per regulation 1.05A) on the Primary Applicant as claimed.

4. The delegate stated “on the basis of the information before me, I am not satisfied that Secondary 1 and 2, are dependent on the Primary Applicant. I therefore find that the Secondary 1 and 2 do not satisfy sub regulations 1.12(1)(e)(ii) and 1.12(1)(e)(iii). I therefore find that I cannot be satisfied that Secondary Applicant 1 and 2 are members of the Primary Applicant’s family unit.”

5. The review applicant appeared before the Tribunal on 12 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Khodadad Qasemi and Mr Mohammad Saumi.

6. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether Miss Shaima Naderi and Miss Fatima Naderi are members of the Primary Applicant’s family unit. The delegate concluded that they were not.

9. The Primary Applicant declared that all secondary applicants included in the application are the biological children of the Sponsor. In the absence of any information to the contrary the delegate accepted that the secondary applicants, Miss Shaima Naderi and Miss Fatima Naderi, are the biological children of the Sponsor.

10. I also accept that both secondary applicants are the biological children of the sponsor based upon the evidence of the parties and the witnesses in the hearing.

11. I turn to the provisions in the regulations that were nominated by the delegate in her refusal of the applications. Sub regulations 1.12(1)(e)(ii) and 1.12(1)(e)(iii) were cited as not being met, leading the delegate to  find that she was not satisfied that the secondary applicants are members of the primary applicant’s family unit. The delegate expressly did not make a decision on the primary applicant’s application.

12. The delegate considered sub regulation 1.12(1)(e). In the circumstances of this case, where Miss Shaima Naderi and Miss Fatima Naderi are the sponsor’s biological children, sub regulation 1.12(1)(b) should be considered.

13. Member of the family unit is defined in regulation 1.12 as follows:

    1.12       Member of the family unit

    (1)  For the definition of member of the family unit in subsection 5 (1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is: 

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

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

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

    (e)   a relative of the family head or of a spouse or de facto partner of the family head who:

    (i) does not have a spouse or de facto partner; and

    (ii)    is usually resident in the family head’s household;       and 

    (iii)    is dependent on the family head.

14. Dependent child is defined in regulation 1.03 as follows:

    Dependent child, of a person, means the child or step‑child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

    (a)  has not turned 18; or

    (b)  has turned 18 and:

    (i)  is dependent on that person; or

    (ii)  is incapacitated for work due to the total or partial loss  of the child’s bodily or mental functions.

15. Accordingly, under sub regulation 1.12(1)(b) a person is a member of the family unit of another person if the person is a dependent child of the family head or a spouse or de facto partner of the family head. Dependent child as defined in regulation 1.03 includes a child or step‑child of the person, being a child who is under the age of 18 as well as a child or step‑child of the person over the age of 18 who is ‘dependent’ (as defined in regulation 1.05A) on that person or is incapacitated for work due to the total or partial loss of bodily or mental functions. A child who has a spouse or de facto partner (as defined) or is engaged to be married is not a ‘dependent child’ for the purposes of regulation 1.03.

16. In this case the secondary applicants are the sponsor’s biologically children and were under the age of 18 at the time of the visa application on 22 June 2016. Evidence from the delegate’s decision indicates that Miss Shaima Naderi was born on 5 May 2003 and Miss Fatima Naderi was born on 8 August 2008. This is not disputed by the delegate. Accordingly at the time of application each secondary applicant was a dependent child of the family head or of a spouse of the family head. Each secondary applicant meets the definition of member of the family unit in sub regulation 1.12(1)(b).

17. The secondary applicants, Miss Shaima Naderi and Miss Fatima Naderi, meet the definition of member of the family unit for the purposes of cl.309.311. However the Tribunal is unable to make a permissible decision remitting the application for reconsideration under cl.309.311which requires that an applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21,as the primary applicant has not yet been assessed against the primary criteria by the Department.

18. The Tribunal has therefore considered whether the secondary applicants meet another applicable provision via which a permissible direction can be made. Tribunal has decided to remit the application to the Department for reconsideration under cl.309.324. Clause 309.324 requires that if the applicant has previously been in Australia, the applicant satisfies special return criteria 5001 and 5002. As neither secondary applicant has previously been in Australia, special return criteria 5001 and 5002 are not applicable and cl.309.324 is met.  

    DECISION

19. 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.309.324 of Schedule 2 to the Regulations

    Justin Meyer
    Member