Shah (Migration)
[2025] ARTA 565
•12 March 2025
SHAH (MIGRATION) [2025] ARTA 565 (12 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Syed Ghulam Shah
Visa Applicants: Mr Syed Hussain Shah
Ms Bibi Maryam
Ms Bibi ShakilaRespondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2316314
Tribunal:General Member T. Quinn
Place:Melbourne
Date: 12 March 2025
Decision:The Tribunal sets aside decisions under review and remits the application for Partner (Provisional) (Class UF) visas for reconsideration, in accordance with the order that the applicants meet the following criteria for a Subclass 309 (Partner (Provisional)) visa:
· clause 309.321(3) of Schedule 2 to the Regulations
Statement made on 12 March 2025 at 4:08pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – subclass 309 – whether the visa applicants met the definition of ‘member of a family unit’ of their mother – children over the age of 23 – severe mental health issues – applicants are now wholly or substantially reliant on their parents for financial support – applicants dependent at the time of decision – the time of decision criteria have been met by the visa applicants – decision under review remittedLEGISLATION
Migration Amendment (Dependent Secondary Partner Visa Applicants) Regulations 2024
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.05, 1.12, Schedule 2, cls 309.311, 309.321CASES
Berenguel v Minister for Immigration and Citizenship [2010] HCA 8STATEMENT OF REASONS
APPLICATION FOR REVIEW
On 17 August 2021, Gul Bibi (‘Ms Bibi’), the visa applicants and their younger siblings applied for Provisional Partner visas (‘the visa’).[1] Ms Bibi brought her application (‘the application) based on her marriage to the review applicant (‘the sponsor’ or ‘Mr Shah’).[2] The visa applicants in this case and their younger siblings were included in the application as dependent child members of the family unit of Mr Shah and Ms Bibi.
[1]Specifically, a Partner (Provisional) (Class UF) visa. This was a combined application with a Partner (Migrant)(class BC)(subclass 100) visa which is a permanent, not provisional, partner visa.
[2]The application was brought pursuant to section 65 of the Migration Act 1958 (‘the Act’). At the time of the application, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)) and Class BC contained only one subclass: Subclass 100 (Partner). The criteria for the grant of a Subclass 309 visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The criteria for the grant of a subclass 100 visa are set out in Part 100 of 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.
On 28 September 2023, a delegate of the Minister for Immigration (‘the delegate’):
a.granted Ms Bibi and the visa applicants’ younger siblings partner visas;[3] and
b.refused visa applications of the visa applicants in this review application, not being satisfied that the visa applicants were members of the family unit of their mother at the time of application or the time of decision (‘the delegate’s decision’).[4]
[3] See Department file.
[4] See clauses 100.311, 100.321, 309.311 and 309.321 of Schedule 2 of the Regulations.
On 11 October 2023, the sponsor applied for a review of the delegate’s decision with the Administrative Appeals Tribunal (‘the AAT’).[5]
On 14 October 2024, the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘the Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
On 19 February 2025, the sponsor and his wife appeared in person before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants over video. The review applicant was represented in relation to the review and their representative also attended the hearing in person. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The Tribunal exercised its discretion to hold the hearing in part by video conference in order that the visa applicants could give evidence from Pakistan. The Tribunal determined it was reasonable to hold this part of the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicants, Ms Bibi, and the sponsor. The Tribunal also considered its objective to provide a mechanism of review that is fair, just, quick, accessible and responsive and the delay that would occur if the hearing were not be conducted by video in exercising its discretion.
[5] Pursuant to sections 338(5) and 347(2)(b) of the Act.
The decision is remitted for reconsideration. In reaching my decision, I have had regard to all the information before me, including:
a.all evidence given and submissions made at hearing;
b.all material filed by or on behalf of the visa applicants, Ms Bibi and the sponsor (including post hearing submissions); and
c.other relevant documents on the Tribunal and Department files.
Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the reasons set out below. The reasons incorporate reference only to that information found to be fundamental or materially significant to the determination of the issues in the case.[6]
[6]In this regard, please see Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (24 February 2020) at [82] and [96].
STATUTORY AND LEGAL FRAMEWORK
The visa applicants are aged 29, 27 and 32 years respectively. At the time of application, they were all over the age of 23 years. There are different criteria that must be met by children aged under 18, aged between 18-23 and aged over 23 years in order to satisfy the requirements of the Act and Regulations in relation to ‘member of the family unit’.
Clause 309.311 of Schedule 2 of the Regulations requires that, at the time of application, a child must be the member of a family unit of, and made a combined application with, a person who satisfied the primary criteria in Subdivision 309.21. The visa applicants made combined applications with their mother, Ms Bibi, and their younger siblings - who were all found to satisfy the primary criteria in Subdivision 309.21 and 309.3 respectively. Ms Bibi and the visa applicants’ younger siblings were all granted partner visas on 28 September 2023.
The issue in this case is whether the visa applicants met the definition of ‘member of a family unit’ of their mother at the time of application and/or the time of decision.
Clause 309.312 of Schedule 2 of the Regulations requires that, at the time of application, the visa applicants are sponsored by the sponsor. This clause is satisfied.
Clause 309.321(b) of Schedule 2 of the Regulations sets out provisions relating to the visa applicants’ circumstances, in substance requiring that they continue to be a member of the family unit of their mother and that the Tribunal make a finding in their favour in this regard.
The issues in this case are:
a.Whether the visa applicants were members of the family unit of their mother at the time of application when they were all over 23 years of age; and
b.Whether the visa applicants are members of the family unit of their mother at the time of decision.
The definitions section of the Act (section 5) directs that ‘member of the family unit’ is defined by regulation 1.12 of the Regulations. Regulation 1.12(2)(b) provides that children of the family head (Ms Bibi in this case) are members of the family unit if they:
i) have not turned 18; or
ii) have turned 18, but have not turned 23, and are dependent on the family head or on the spouse or de facto partner of the family head; or
iii) have turned 23 and are dependent on the family head or on the spouse or de facto partner of the family head in accordance with paragraph 1.05A(1)(b).
‘Dependent’ is defined in regulation 1.05A of the Regulations. Specifically in relation children aged between 18 and 23, regulation 1.05A(1)(a) provides that a child in this age range is ‘dependent’ on their parent if they are and have been for a substantial period immediately before the relevant time, wholly or substantially reliant on the parent for financial support to meet their basic needs for food, clothing and shelter; and the child’s reliance on the parent is greater than any reliance they may have on any other person, or source of support, for financial support to meet the child’s basic needs for food, clothing and shelter.
Specifically in relation to children over the age of 23, regulation 1.05A(1)(b) effectively provides that a child aged over 23 years is ‘dependent’ on their parent if they are wholly or substantially reliant on the parent for financial support because the child is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.
Significantly, in 2024, the Migration Amendment (Dependent Secondary Partner Visa Applicants) Regulations 2024 (‘Amendment Regulations’) were enacted to rectify situations were certain classes of visa applicants over the age of 23 had been disadvantaged due to delays in their partner visa applications being determined. The Explanatory Statement states that the Amendment Regulations provide that members of the family unit child applicants who made an application before 9 February 2023 which has not yet been finally determined need only demonstrate that they remain dependent on the primary applicant at the time of decision, regardless of their age. An alternative view is that if subclause 309.321(3) is met at the time of decision, the legislation deems such child applicants ‘dependent’ at the time of decision.
The Amendment Regulations, which were enacted after the delegate’s decision in this case, change the provisions of clause 309.321 of Schedule 2 of the Regulations to read as follows:
(1) The applicant meets the requirements of subclause (2) or (3)…
(3) If:(a) the applicant made a combined application with a person (the primary person ):
i.who, having satisfied the primary criteria in Subdivision 309.21, is the holder of a Subclass 309 (Partner (Provisional)) visa; or
ii. who has subsequently been granted a Subclass 100 (Partner) visa; and
(b) both of the following apply in relation to the sponsor of the primary person:
i.the sponsor has at any time been an unauthorised maritime arrival;
ii.the sponsor was an Australian permanent resident at the time the combined application was made;
the applicant is dependent on the primary person.
The matters outlined above must be considered and, to the extent relevant, applied to the applicant’s case. Accordingly, I have carefully considered these matters in relation to the material and evidence before me. I recognise, however, that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, independently of any conclusions reached by the delegate.
Compliance with the prescribed criteria turns on whether or not the criteria have been met and not on the objective existence of that fact.[7] In determining whether it is so satisfied, decision makers are not required to uncritically accept any or all of the claims made by the applicants, and I have not done so. A decision maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion is not made out.[8]
[7] Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 at 15.
[8]Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7].
If a decision maker does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepts or rejects individual pieces of evidence.[9]
[9]Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67].
It is for the applicant, in this inquisitorial process, to put whatever evidence or argument they wish to a decision maker in order to enable that decision maker to reach the requisite state of satisfaction.[10]
CONSIDERATION OF CLAIMS AND EVIDENCE
[10]Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76].
309.311 – time of application
The evidence before me is that the visa applicants were already over the age of 23 years at the time of application in 2021. In order to satisfy the requirements of ‘member of the family unit’ the applicants must satisfy regulation 1.05A(1)(b) of the Regulations at the time of application.
The evidence before me is consistent that the applicants are not working, have never worked and are entirely financially reliant on their parents to meet their basic needs for food, clothing, and shelter.
The visa applicants have filed psychiatrist reports, all written by the same psychiatrist and all dated 20 September 2024. These reports set out severe mental health issues in relation to all three visa applicants. The applicants have filed corroborating photos regarding the medication they are taking to manage their mental health symptoms.
The psychiatrist reports indicate that the applicants have been attending upon their psychiatrist for between seven and ten months. The reports used the words ‘illness started eight/seven/ten months’ back/ago. At hearing, the evidence was consistent that the visa applicants’ mental health issues commenced upon their mother’s departure from Pakistan in 2023.
Post hearing submissions have been filed referring to the living situations for the visa applicants in Pakistan and their concerns for their safety for many years. These submissions claim that the applicants have been suffering from mental health conditions since before their visa application was made but that there is stigma around mental health in Pakistan and so their assessment was delayed. I do not find these submissions persuasive and consider the evidence before me is consistent that the visa applicants were not suffering from diagnosed mental health conditions at the time of their application in 2021.
I am satisfied that the visa applicants were wholly or substantially reliant on their parents for financial support in 2021 but I am not satisfied that this reliance was because they were incapacitated for work due to the total or partial loss of their bodily or mental functions.
I am not satisfied that the visa applicants meet the requirements of clause 309.311 at the time of application.
309.321 – time of decision
To satisfy the requirements of ‘member of the family unit’ the applicants must be dependent on their parents at the time of decision.
The evidence before me is consistent that all three visa applicants’ and both of their parents are suffering serious mental health conditions due to their extended separation. The sponsor arrived in Australia in 2012 and has been living separately from his family for many years and the evidence at hearing from all individuals giving evidence was emotional and distressed after such a prolonged period of separation, exacerbated by the visa applicants living in such difficult circumstances in Pakistan.
Many documents have been filed in relation to the sponsor’s and Ms Bibi’s mental health. However, the Act and Regulations do not permit this evidence to be considered in relation to whether children are members of the family unit of their parents. I empathise with the mental health and other challenges Ms Bibi and the sponsor have faced but do not consider they are relevant to my considerations in this case. In this regard, I note that the Act and Regulations do not grant me a discretion to take into account such evidence.
The psychiatrist’s reports regarding the visa applicants’ mental health are very similar. Post hearing documents have been filed regarding this and the psychiatrist’s attendance on more than one visa applicant at a time in his sessions. The applicants are suffering from stress, anxiety and depressive episodes with various symptoms including tearfulness, social isolation, reduced energy, and insomnia. Their psychiatrist states in his report that all three visa applicants are unable to work due to their mental health conditions. They are all medicated. The oral evidence at hearing was consistent with the psychiatric documents filed.
I accept that the psychiatric and other evidence before me suggests that the visa applicants are now wholly or substantially reliant on their parents for financial support because they are incapacitated for work due to the total or partial loss of their bodily or mental functions.
In addition, with reference to the newly enacted clause 309.321(3), I note that:
a.the visa applicants made a combined application with Ms Bibi and that Ms Bibi has been granted a subclass 100 (partner) visa; and
b.the sponsor arrived in Australia as an unauthorised maritime arrival and was an Australian permanent resident at the time the combined application was made (his Australian citizenship not granted until 17 February 2022).
Therefore, in any case, I consider clause 309.321(3) deems the visa applicants dependent at the time of decision in this case.
The visa applicants meet clause 309.321(3) of the Regulations.
Consequences of criteria only being met at time of decision
In Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 (‘Berenguel’), the High Court found that while the heading ‘Criteria to be satisfied at the time of application’ may inform the construction of the criteria thereunder, the criteria in question did not speak exclusively to the satisfaction at the time of application, and that the heading did not connect grammatically to the terms of the clause and did not support a general conclusion that the criteria could only be satisfied at the time of application.
It appears that Berenguel has been relied upon in a subclass 309 case where the Federal Circuit Court remitted a matter by consent on the basis that the Tribunal, having found the applicant did not meet clause 309.311, as she was not a member of the family unit at the time of application, failed to consider whether the applicant satisfied clause 309.321 at the time of decision. In that case, it appears the conclusion was reached that if an applicant meets time of decision criteria, they may not be required to satisfy time of application criteria. This decision appears to suggest that the Tribunal can take two alternative approaches to secondary applicant cases: considering whether the criteria are met at the time of application and the time of decision; or considering whether the criteria are met at the time of decision (but not necessarily at the time of application) where the primary applicant has been granted the subclass 309 and 100 visas.
I consider it was a long bow to draw between Berenguel, which was a case dealing with the English language requirements, and a subclass 309 partner case in remitting the matter by consent in the Federal Circuit Court. However, I also note the reasons for the changes to clause 309.321 (being that unlawful maritime arrivals often face considerable delays with processing times onshore) and Mr Qasimi’s submissions that these same circumstances (processing delays) prohibited the sponsor from making the partner visa application for his family sooner when the visa applicants were still under the age of 23. Further, I note that there is an absence of other Court authority dealing with application and interpretation of the law where time of application criteria are not met but time of decision criteria are met in this area of Migration law. In such circumstances, I consider the correct decision is to remit this matter on the basis that the time of decision criteria have been met by the visa applicants.
DECISION
The Tribunal sets aside decisions under review and remits the application for Partner (Provisional) (Class UF) visas for reconsideration, in accordance with the order that the applicants meet the following criteria for a Subclass 309 (Partner (Provisional)) visa: clause 309.321(3) of Schedule 2 to the Regulations.
Date(s) of hearing: 19 February 2025
Representative for the Applicant: Mr Rasheed Qasimi (MARN: 1575435)
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