Sharifi (Migration) - [2020] AATA 5378

Sharifi (Migration) [2020] AATA 5378 (23 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Murtaza Sharifi
VISA APPLICANT:  Master Khoda Dad Rasooli
aka Khuda Dad
CASE NUMBER:  1714064
DIBP REFERENCE(S):  BCC2015/1903141
MEMBER:Nicholas McGowan
DATE:23 November 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made 23 November 2020 at 10:29am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner) – member of family unit – young adult brother of primary visa applicant – undocumented refugee in third country – wholly or substantially dependent for substantial period – dependent on review applicant (brother-in-law), not on primary visa applicant (sister) – lack of specificity of evidence – regulations distinguish between family head and spouse – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 347, 356(3), 359AA, 366(1)
Migration Regulations 1994 (Cth), rr 1.05A(1)(a), 1.12(1)(e)(iii), Schedule 2, cl 309.311
CASES
Alimi v Minister for Immigration [2007] FMCA 1520
Al Naqi v Minister for Immigration [2007] FMCA 874

WRITTEN STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Immigration and Citizenship to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
On June 29, 2015 the visa applicant applied (as a secondary applicant attached to his sister’s partner visa application) to the Department of Immigration and Citizenship for a Partner (Provisional) (Class UF) visa as a member of the family unit of the review applicant’s wife, Mrs Simagul Sharifi born June 1995 (the visa applicant’s claimed biological full-sister), who was the primary applicant.
On May 11, 2017 in the United Arab Emirates, a delegate for the Minister, refused the visa application for the secondary applicant (referred to in this review as the ‘visa applicant’) under review as they did not satisfy cl.309.311 of Schedule 2 to the Migration Regulations.
The delegate found the secondary applicant (visa applicant) did not satisfy cl.309.311 because he did not satisfy the lawful requirements as a member of the family unit of the primary applicant at the time of application.
The delegate notified them of the decision, and their review rights, in a letter emailed May 11 2017. The review applicant applied to this Tribunal on 30 June 2017 for review of that decision.
The Tribunal finds that the delegate’s decision is a reviewable decision under the Act. The Tribunal finds that the review applicant has made a valid application for review under s.347 of the Act.
REVIEW
On the 25 August 2020, the review applicant was invited to appear by telephone before the Tribunal to give evidence and present arguments at a hearing scheduled 14 October 2020.
The Tribunal’s invitation to the review applicant to attend a hearing explained that the Tribunal had considered all the material before it relating to the review application but…

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 Sharifi (Migration)

Details

AGLC: Sharifi (Migration) [2020] AATA 5378
Case: [2020] AATA 5378
Decision Date: 23 November 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for a Partner (Provisional) visa (subclass 309) by a secondary visa applicant, who was the young adult brother of the primary visa applicant. The dispute centred on whether the secondary applicant qualified as a member of the family unit for the purposes of the visa application, specifically whether he was wholly or substantially dependent on the primary applicant for a substantial period. The secondary applicant was an undocumented refugee in a third country.

The Tribunal was required to determine if the secondary applicant met the definition of a member of the family unit as defined by the Migration Regulations. This involved assessing whether he was dependent on the primary visa applicant, his sister, and whether this dependency met the required threshold of being "wholly or substantially dependent for a substantial period." The Tribunal also had to consider the evidence provided to support this claim of dependency.

The Tribunal found that the evidence presented lacked the necessary specificity to establish the required dependency. Crucially, the dependency that was evidenced was on the review applicant's brother-in-law, not on the primary visa applicant (his sister). The Tribunal noted that the regulations distinguish between a family head and a spouse, and in this instance, the dependency was not established in relation to the primary visa applicant. Consequently, the Tribunal affirmed the decision not to grant the visa.

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

As the ‘time of application’ criteria has not been met, the Tribunal is not required to proceed and consider the time of decision criteria.DECISION The Tribunal affirms the decision not to grant the secondary visa applicant a Partner (Provisional) (Class UF) visa.

Ratio Decidendi

Legal Principle Established

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