Nazari (Migration) - [2021] AATA 4130

Nazari (Migration) [2021] AATA 4130 (21 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Ali Nazari
VISA APPLICANT:  Mr Mubarak Ali
CASE NUMBER:  2102445
HOME AFFAIRS REFERENCE(S):          OSF2013/102603
MEMBER:Justin Meyer
DATE:21 October 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.311 of Schedule 2 to the Regulations; and
·cl.309.321 of Schedule 2 to the Regulations.

Statement made on 21 October 2021 at 12:13pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – member of the family unit – dependent child – customary adoption by an uncle – both parents are deceased – wholly or significantly financially reliant upon the primary visa applicant – substantial period – money transfers – family head – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.311, 309.321; rr 1.03, 1.04, 1.05, 1.12
CASES
Huang v MIMA [2007] FMCA 720
Vo v Minister for Home Affairs [2019] FCAFC 108
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 Home Affairs to refuse to grant the applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 31 October 2013. The delegate refused to grant the visa on 21 December 2020 on the basis that the applicant did not satisfy the requirements of cl 300.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 300.311 of Schedule 2 relevantly requires the applicant to be a member of the family unit of and have made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21 at the time of application.
Mr Ali Nazari, who is both the review applicant and sponsor (“the review applicant”), appeared before the Tribunal on 19 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mubarak Ali (“the secondary applicant”) and Ms Masooma Ali. 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 his registered migration agent.
Due to the COVID-19 pandemic, the Tribunal did not hold an in-person hearing. The review applicant, visa applicant and the review applicant’s wife appeared by video before the Tribunal to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the applicant is a member of the family unit and satisfies cl 300.311 (i.e. whether the applicant is a member of the family unit of, and made a combined application with,…

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 Nazari (Migration)

Details

AGLC: Nazari (Migration) [2021] AATA 4130
Case: [2021] AATA 4130
Decision Date: 21 October 2021

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Nazari, against a decision of the Migration Review Tribunal. The dispute centred on whether the applicant qualified as a "member of the family unit" for the purposes of a Partner (Provisional) (Class UF) visa, specifically a Subclass 309 visa, which had been granted to Ms Masooma Ali. The Tribunal was required to determine if the applicant, claiming to be the son of Ms Ali, met the criteria to be considered a dependent child at the time of the visa application and at the time of the Tribunal's decision.

The core legal issues before the Tribunal were whether the applicant was a "dependent child" of Ms Ali, and by extension, a "member of the family unit" as defined by the Migration Regulations 1994. This required an assessment of the applicant's financial reliance on Ms Ali, considering the definition of "dependent" under regulation 1.05A, which mandates a substantial period of wholly or substantially financial reliance for basic needs, and that this reliance must be greater than any other source of support. The Tribunal also had to consider the applicant's age at the time of the decision, as he had turned 18 and was 24 at the time of the Tribunal's consideration, necessitating an assessment of dependency beyond the typical definition of a child.

The Tribunal reasoned that the definition of "dependent child" under regulation 1.12, as informed by regulation 1.05A, requires a temporal and qualitative assessment of reliance. It noted that while the applicant claimed to study rather than work, there was no evidence of incapacity for work. The Tribunal referred to the Full Court's observation in *Vo v Minister for Home Affairs* that dependency requires a substantial period of reliance and that this reliance must be greater than any other source of support. The Tribunal also acknowledged that "substantial period" has been interpreted as a lengthy period.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. This was because the Tribunal needed to make findings on whether the applicant was dependent on Ms Ali at the time of the decision, considering the requirements of regulation 1.05A and the case law, particularly the temporal and qualitative elements of dependency.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the applicant is a member of the family unit and satisfies cl 300.311 (i.e. whether the 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). The issue in this case is whether, at the time of application on 9 June 2013, the visa applicant was a member of the family unit of Ms Masooma Ali. The information before the Tribunal is that Ms Ali has been granted a Subclass 309 visa. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl.309.321 as well. 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. Regulation 1.12(1) 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 dependent child of the family head or of their spouse or de facto partner;·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild); or·a relative of the family head or their spouse or de facto partner who does not have a partner, is usually resident in the family head’s household and is dependent on the family head. In this instance, the secondary visa applicant (“the secondary applicant”) is claiming to be the son of the primary visa applicant (who has already been granted a subclass 309 partner visa and the sponsor (“the review applicant”). A person is the ‘dependent child of the family head or their spouse or de facto partner’ if they are the child or step-child of the family head or their spouse or de facto partner and meet the requisite dependency requirements. The former version of r.1.12 provides: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. As the delegate noted, subregulations (2), (2A), (6) and (7) are not applicable in an application for a Subclass 309 visa.

Decision

Reasons for decision

However, as the evidence before the Tribunal is that, at the time of this decision, the visa applicant has turned 18 — indeed, that he is 24 years of age (born on 31 May 1997) — it is necessary for the Tribunal to assess whether the visa applicant meets the other aspects of the definition of ‘dependent child’ at the time of this decision. There is no evidence before the Tribunal that the visa applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions. Rather, the consistent claim that has been made is that the visa applicant does not work because he studies. Accordingly, it is necessary for the Tribunal to assess whether, at the time of this decision, the secondary visa applicant is dependent on the primary applicant or on the review applicant for the purpose of the definition of ‘dependent child’.At the time of this decision, is the visa applicant dependent on the primary applicant (the family head) or on the review applicant (the spouse of the family head)? The law Regulation 1.03 provides that ‘dependent’ has the meaning given by r.1.05A. The term ‘dependent’ is defined in r.1.05A. At the time of application and at the time of this decision, this relevantly provides:(1) … a person (the first person) is dependent on another person if:(a)at the time when it is necessary to establish whether the first person is dependent on the other person:(i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and(ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter[.] The Full Court of the Federal Court of Australia considered the application of r.1.05A in Vo v Minister for Home Affairs.[1] The Court made the following observation:the definition stated in reg 1.05A has both a temporal and qualitative element. The temporal element is that period being ‘a substantial period immediately before’ the time ‘when it is necessary to establish whether the first person is dependent on the other person’. The qualitative element is the degree of dependency or reliance. Therefore, in order to satisfy the clause, the person claiming to be a dependent must show that during the relevant period they were wholly or substantially reliant on the first person. Further, it must be shown that at the time when it is necessary to establish dependency, the reliance on the first person was greater than the reliance on any other person.[2][1] [2019] FCAFC 108.[2] At [20]. There is no definition in the Regulations of what constitutes a ‘substantial period’. However, in the context in which ‘substantial’ is used in r.1.05A, it has been held that it should be understood to mean a lengthy period.[3] 8Huang v MIMA [2007] FMCA 720 (Cameron FM, 16 May 2007) at [43]. This finding was made in the context of considering the definition of ‘aged dependent relative’ in r.1.03. His Honour stated, at [44], that a ‘reasonable period’—which was the term used in that context—need not be lengthy.

Ratio Decidendi

Legal Principle Established

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