Saeidi (Migration) - [2021] AATA 95

Saeidi (Migration) [2021] AATA 95 (22 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Hooman Saeidi
CASE NUMBER:  1804536
DIBP REFERENCE(S):  CLF2017/43152
MEMBER:Christine Kannis
DATE:22 January 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:
·cl.835.212 of Schedule 2 to the Regulations
·cl 835.221 of Schedule 2 to the Regulations
·Public Interest Criterion 4020 for the purposes of cl.835.223 of Schedule 2 to the Regulations

Statement made on 22 January 2021 at 6:06am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – no near relatives except those that are usually resident in Australia – applicant’s mother arrived in Australia on permanent visa one month earlier – physical presence and intention – mother’s step to establish residence in Australia and returns to home country to care for ailing parent – bogus document or false or misleading information in previous visa application – hours worked in second job – second job not declared in earlier visa application – informal job with no documentation – integrity checks unable to verify claims – frank and forthright oral evidence – evidence from employer/author of reference – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 378
Migration Regulations 1994 (Cth), rr 1.03, 1.15(1)(c), Schedule 2, cls 835.212, 835.221, 835.223, Schedule 4, criterion 4020(1)
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Hafza v Director General of Social Security (1985) 6 FCR 444; [1985] FCA 164
Ignatious v MIMIA [2004] FCA 1395
Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241
MIMIA v Hidalgo [2005] FCAFC 192
Scargill v MIMIA [2003] FCAFC 116; (2003) 129 FCR 259
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 February 2018 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 14 June 2017. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 835 visa which are set out in Part 835 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.835.212 and cl.835.223
The delegate refused to grant the visa on the basis that cl.835.212 was not met because the delegate was not satisfied that the applicant is the remaining relative within the meaning of r.1.15. The delegate was also not satisfied that the applicant met Public…

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 Saeidi (Migration)

Details

AGLC: Saeidi (Migration) [2021] AATA 95
Case: [2021] AATA 95
Decision Date: 22 January 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for an Other Family (Residence) (Class BU) visa, Subclass 835 (Remaining Relative). The applicant sought to migrate to Australia based on being the remaining relative of their Australian citizen sister. The primary dispute revolved around whether the applicant met the criteria for a Remaining Relative visa and whether they had contravened Public Interest Criterion (PIC) 4020 by providing bogus documents or false or misleading information in a previous visa application.

The Tribunal was required to determine two key legal issues. Firstly, whether the applicant qualified as a "remaining relative" of an Australian relative at the time of application and decision, as defined by the Migration Regulations 1994. This involved assessing whether the applicant's sister was an Australian relative and whether the applicant, along with their spouse, had no "near relatives" in Australia other than those who were usually resident in Australia and were Australian citizens, permanent residents, or eligible New Zealand citizens. Secondly, the Tribunal had to determine if the applicant satisfied PIC 4020, which pertains to the provision of bogus documents or false or misleading information in a visa application.

The Tribunal's reasoning focused on the applicant's previous Subclass 457 visa application, where they claimed to have worked a second job as a cook for at least 44 hours per week. Integrity checks by the Department raised concerns about the genuineness of this employment and a reference letter provided for it, as the applicant had previously stated they could not provide evidence of this work. The Department's office in Tehran reported difficulties in verifying the employment and the author of the reference, noting the applicant's full-time engineering employment and the logistical challenges of undertaking such a second job. Despite the applicant's explanation that the work was informal and undocumented, and that they had been forthright about their employment history, the delegate found the information to be false or misleading and the reference to be a bogus document.

Ultimately, the Tribunal remitted the application for reconsideration. The direction was that the applicant met the criteria for the Subclass 835 visa, including the requirements of cl.835.212 and cl.835.221 of Schedule 2 to the Regulations, and PIC 4020 for the purposes of cl.835.223. This indicates that the Tribunal found the applicant satisfied the substantive visa requirements and that any issues relating to PIC 4020 were either resolved or waived in favour of the applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Departmental file contains a s.376 certificate dated 7 March 2018. The Tribunal explained that the effect of such a certification is that the Tribunal is given discretion whether to disclose the document and/or information covered by the certificate. The Tribunal informed the applicant that the Department had issued the certificate on the basis that disclosure of the folios specified would be contrary to public interest. The Tribunal informed the applicant that it had found the certificate to be valid. The Tribunal noted that the reasons disclosure would be contrary to public interest were stated to be because disclosure would reveal the sponsor’s international travel movements – privacy reasons; the information related to internal Department visa processing and integrity checking procedures and disclosure would identify a Departmental Integrity Officer - security reasons. The Tribunal invited the applicant and his representative to comment on the validity of the certificate. They made no comment.CONSIDERATION OF CLAIMS AND EVIDENCE The first issue in this case is whether the applicant, at the time of application, was the remaining relative (as defined), of an Australian relative. The second issue is whether the applicant satisfies PIC 4020. Prior to the hearing the applicant’s representative provided the Tribunal with a written submission and other documentation which included but was not limited to a Residential Tenancy Agreement, Movement Details, a bank statement and Medicare correspondence. The visa application was made on the basis that the applicant is the remaining relative of Sholeh Saeidi, who the applicant claims is their Australian relative. For the purposes of this application, ‘Australian relative’ means a ‘relative’ of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen: r.1.03. ‘Relative’ is also defined in r.1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents). In this case Sholeh Saeidi is the applicant’s sister and is an Australian citizen and therefore is an Australian relative for these purposes.Is the applicant a remaining relative of an Australian relative? To be granted a Subclass 835 visa the applicant must be a ‘remaining relative’ of an ‘Australian relative’ at time of application and continue to be a ‘remaining relative’ at time of decision: cl.835.212 and cl.835.221. ‘Remaining relative’ is defined in r.1.15 of the Regulations, which is set out in the attachment to this decision. Broadly speaking, an applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, step-parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the applicant and is ‘usually resident in Australia’. The applicant, together with his or her spouse or where relevant, de facto partner, must also have no ‘near relatives’, with the exception of certain relatives, in Australia. The requirement to be a parent or sibling: r.1.15(1)(a)

Decision

Reasons for decision

The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). The delegate’s decision The delegate decided that the applicant provided false or misleading information when he indicated in a Subclass 457 visa application that he worked at least 44 hours a week at Majlesiye Novin between 2010 and 2014. The bogus document was a reference provided in relation to that work. In making these decisions the delegate noted:·In a Subclass 457 visa application, the applicant claimed that from February 2010 to September 2014 he was employed as a cook by a catering company in Tehran called Majlesiye Novin. In a statement provided to the Department on 10 May 2015, he claimed this was a second job to supplement the income from his full-time employment as an Industrial Engineer. He said he was unable to provide any evidence of his employment as a cook.·Integrity checks of the applicant’s claimed work experience and the documents he supplied to William Angliss Institute to support his Skilled Migration Assessment were made. It was found that, notwithstanding his claims to the Department that he was unable to provide any evidence of his employment with Majlesiye Novin, he provided William Angliss Institute with a reference dated 28 September 2015 from this business. The reference stated that the applicant worked 44 hours per week as a cook between February 2010 to September 2014.·The reference was referred to the Department’s office in Tehran for further integrity checks. That office reported serious concerns about the applicant’s employment as a cook and the genuineness of the reference from Majlesiye Novin for the following reasons:oThey had been unable to contact the claimed author of the reference.oThe employment history the applicant provided to the Department in an unsuccessful student visa application in July 2010 made no reference to his employment as a cook.oIntegrity checks confirmed the applicant was employed on a full-time basis as an industrial engineer with Iran Khodro Company, working 44 hours per week receiving a “reasonably good income”.oThe credibility of the applicant being required to supplement his income and working a further 44 hours per week in a catering company in East Tehran located some 50 kilometres from his home and work in West Tehran was very low.·On 13 December 2017, the delegate sent the applicant an Invitation to comment on the Department’s assessment that the information he had supplied about his work experience to support his Subclass 457 visa application was false and misleading and the reference from Majlesiye Novin was a bogus document. ·On 10 January 2018, the applicant’s sponsor/ former migration agent wrote the following in an email to the Department:“The reason that the applicant did not provide his work experience as a cook is that at the time he didn’t think it is necessary to provide it for his student visa. Also, he did not have any official record of his work experience as a cook. As he clearly explained in a declaration provided to DHA in May 2015, his work experience as a cook was a secondary job and he was working as an engineer on his primary job.I believe not only the applicant never attempt to provide misleading information, but also he was clear on his work experiences both as a cook and as an engineer. Please refer again to the declaration provided by the applicant in 2015 that he explained he officially worked as anengineer (attached to this email for your convenience).Regarding the reference letter provided to the assessing body, the manager/owner of Majlesi Novin at the time is available to confirm it and provide more information.”Evidence provided prior to the hearing

Ratio Decidendi

Legal Principle Established

The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:·cl.835.212 of Schedule 2 to the Regulations·cl 835.221 of Schedule 2 to the Regulations·Public Interest Criterion 4020 for the purposes of cl.835.223 of Schedule 2 to the RegulationsChristine KannisMemberATTACHMENT - Extracts from the Migration Regulations 19941.15 Remaining relative(1)An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:(a)the other person is a parent, brother, sister, step-brother or step-sister of the applicant; and(b)the other person is usually resident in Australia; and(c)the applicant, and the applicant’s spouse or de facto partner (if any), have no near relatives other than near relatives who are:(i)usually resident in Australia; and(ii)Australian citizens, Australian permanent residents or eligible New Zealand citizens; and(d)if the applicant is a child who:(i) has not turned 18; and(ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas:at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.(2)In this regulation:near relative, in relation to an applicant, means a person who is:(a)a parent, brother, sister, step-brother or step-sister of the applicant or of the applicant’s spouse or de facto partner (if any); or(b)a child (including a step-child) of the applicant or of the applicant’s spouse or de facto partner (if any), being a child who:(i)has turned 18 and is not a dependent child of the applicant or of the applicant’s spouse or de facto partner (if any); or(ii)has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant’s spouse or de facto partner (if any).