Noor Dimbil (Migration) - [2021] AATA 846

Noor Dimbil (Migration) [2021] AATA 846 (5 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Mr Abdullahi Noor Dimbil
VISA APPLICANTS: Ms Nasro Abdullahi Isse
Miss Sundus Abdi Mohammed
Miss Shukri Abdullahi Noor

CASE NUMBER:  1838043
DIBP REFERENCE(S):  BCC2017/2004276
MEMBER:Kira Raif
DATE:5 January 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 309 (Spouse (Provisional)) visas:
·Public Interest Criterion 4020 for the purposes of cl.309.225 of Schedule 2 to the Regulations.

Statement made on 05 January 2021 at 9:34am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 – bogus police check document provided – applicant no longer had valid UNHCR documents – obtained help from third party – unaware of bogus status – valid police check document submitted – compassionate and compelling circumstances – separation of sponsor from children – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl.309.225, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184.
M64/2015 v MIBP [2015] HCA 50
Mudiyanselage v MIAC [2012] FMCA 887
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 24 October 2018 to refuse to grant the applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 6 June 2017. The delegate refused to grant the visas on the basis that the first named applicant (the visa applicant) did not satisfy the requirements of cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied she met 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 5 January 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages. The review applicant was represented in relation to the review by his 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.309.225 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…

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 Noor Dimbil (Migration)

Details

AGLC: Noor Dimbil (Migration) [2021] AATA 846
Case: [2021] AATA 846
Decision Date: 5 January 2021

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa, Subclass 309, brought by Noor Dimbil. The dispute arose because the applicant had provided a document purporting to be a police check which was later found to be bogus. The decision was made by Kira Raif, a Senior Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met Public Interest Criterion (PIC) 4020, specifically subclause (1) which relates to the provision of bogus documents, and whether the waiver provision in PIC 4020(4) should be applied. The Tribunal was required to determine if, despite the initial provision of a bogus document, the applicant could still satisfy the criteria for the visa.

The Tribunal found that the applicant did not meet PIC 4020(1) due to the submission of the bogus police check. However, it concluded that the waiver under PIC 4020(4) should be applied. This conclusion was based on the Tribunal's view that the applicant had obtained assistance from a third party and was unaware of the bogus status of the document, and that a valid police check had subsequently been submitted. The Tribunal also considered compassionate and compelling circumstances, including the separation of the sponsor from their children, in its assessment.

Consequently, the Tribunal remitted the applications for Partner (Provisional) (Class UF) visas for reconsideration. The direction was that the first named applicant met PIC 4020 for the purposes of clause 309.225 of Schedule 2 to the Regulations.

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

The Tribunal has formed the view that the visa applicant does not meet PIC 4020(1) but that the waiver in PIC 4020(4) should be applied. On the basis of the above, the visa applicant satisfies PIC 4020 for the purposes of cl.309.225.DECISION The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 309 (Spouse (Provisional)) visas:·Public Interest Criterion 4020 for the purposes of cl.309.225 of Schedule 2 to the Regulations.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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