Shah (Migration) - [2025] ARTA 565

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 Shakila
Respondent:  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 remitted
LEGISLATION
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, 309.321
CASES
Berenguel v Minister for Immigration and Citizenship [2010] HCA 8
STATEMENT 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…

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 Shah (Migration)

Details

AGLC: Shah (Migration) [2025] ARTA 565
Case: [2025] ARTA 565
Decision Date: 12 March 2025

CaseChat Overview and Summary

The applicants in Shah (Migration) were challenging the administrative decision to refuse their Partner (Provisional) (Class UF) visas under subclass 309. The applicants were adults, over the age of 23, and had severe mental health issues. They were wholly or substantially reliant on their parents for financial support. The applicants' mother had arrived in Australia in 2012 and had been separated from her family for many years. The applicants had lived in Pakistan under difficult circumstances. The applicants argued that their mental health issues had started prior to their visa application in 2021, but they had been unable to obtain a diagnosis due to the stigma around mental health in Pakistan.

The central legal issue was whether the applicants met the definition of a 'member of a family unit' of their mother under the Migration Regulations. The applicants argued that they satisfied the criteria at the time of decision, but not at the time of application. The applicants also argued that the decision-maker had failed to consider the delay in processing their visa application and the impact of the prolonged separation on their mental health.

The Tribunal considered that it was appropriate to remit the matter for reconsideration. The Tribunal noted that the time of decision criteria had been met by the applicants. The Tribunal also noted that there was an absence of other court authority dealing with the application and interpretation of the law where time of application criteria were not met but time of decision criteria were met in this area of migration law. The Tribunal considered it was a long bow to draw between Berenguel and a subclass 309 partner case in remitting the matter by consent in the Federal Circuit Court. However, the Tribunal also noted 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.

The Tribunal set aside the decisions under review and remitted 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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 2025Representative for the Applicant: Mr Rasheed Qasimi (MARN: 1575435)

Ratio Decidendi

Legal Principle Established

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