Taher (Migration) - [2021] AATA 49

Taher (Migration) [2021] AATA 49 (12 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Mohammad Taher
VISA APPLICANTS:  Mr Ramazan Hussaini
Mrs Fatima Fatima
Mr Asif Hussaini
Mr Hassnin Hussaini
Mr Hadi Hussaini
Mr Mehdi Hussaini
CASE NUMBER:  1732127
DIBP REFERENCE(S):  OSF2011/004270 OSF2018/031843 OSF2018/031844
MEMBER:Kira Raif
DATE:12 January 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Migrant) (Class BO) visas.

Statement made on 12 January 2021 at 12:06pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining Relative) – false or misleading information or bogus document in visa application – national identity documents found to be bogus – later provision of genuine documents does not negate earlier provision of bogus documents – non-computerised system at the time – no compassionate or compelling circumstances justifying grant of visa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 366A, 427
Migration Regulations 1994 (Cth), Schedule 2, cl 115.223, Schedule 4, criterion 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Mudiyanselage v MIAC [2013] FCA 266; (2013) 211 FCR 27
Plaintiff M64/2015 v MIBP [2015] HCA 50
SZNSF v MIAC [2010] FCA 266
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 31 October 2017 to refuse to grant the applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants are nationals of Afghanistan. They applied for the visas on 6 March 2011. 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.115.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant 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 1 October 2020 to give evidence and present arguments. The review applicant was represented in relation to the review by his registered migration agent. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
At the commencement of the hearing the applicant’s representative Mr Al-Shadidi requested an adjournment on the…

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 Taher (Migration)

Details

AGLC: Taher (Migration) [2021] AATA 49
Case: [2021] AATA 49
Decision Date: 12 January 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for an Other Family (Migrant) (Class BO) visa, Subclass 115 (Remaining Relative). The applicants sought review of a decision not to grant them this visa.

The primary legal issue before the Tribunal was whether the applicants satisfied the requirements of Public Interest Criterion (PIC) 4020, as stipulated in clause 115.223 of the Migration Regulations 1994. This criterion relates to the provision of false or misleading information or bogus documents in a visa application.

The Tribunal found that national identity documents provided by the applicants were bogus. It reasoned that the later provision of genuine documents did not negate the earlier submission of bogus documents, and that there were no compassionate or compelling circumstances that would justify granting the visa despite this failure. The Tribunal affirmed the decision not to grant the applicants the visas.

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

On the basis of the above, the visa applicants do not satisfy PIC 4020 for the purposes of cl.115.223.DECISION The Tribunal affirms the decision not to grant the applicants Other Family (Migrant) (Class BO) visas.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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