WELDEMARIAM (MIGRATION) - [2024] ARTA 112

WELDEMARIAM (MIGRATION) [2024] ARTA 112 (23 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Tekle Hailemichael Weldemariam
Visa Applicant:  Mrs Tsige Birhane Reda
Respondent:  Minister for Home Affairs
Tribunal Number:  2114945

Tribunal:General Member T. Quinn
Place:Melbourne
Date: 23 October 2024
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 309 (Partner) visa:
· Clause 309.222(1) of Schedule 2 to the Regulations

Statement made on 23 October 2024 at 4:35pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – subclass 309 – sponsorship limitation – there is a child of the relationship and another child expected – there are compelling circumstances that affect the interests of the sponsor – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.20J, Schedule 2, cls 300.213, 309.222
STATEMENT OF REASONS
APPLICATION FOR REVIEW

On 9 January 2019, the visa applicant (‘the applicant’ or ‘Ms Reda’) applied for a Partner visa[1] (‘the visa’) based on her marriage to the review applicant, Mr Tekle Hailemichael Weldemariam (‘the sponsor’ or ‘Mr Weldemariam’).[2]
[1]Specifically, a Partner (Provisional) (Class UF)(subclass 309) visa and a Partner (Migrant) (Class BC)(Subclass 100) visa.
[2]Pursuant to section 65 of the Migration Act 1958 (‘the Act’). At the time of the applicant’s application, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). 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 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 20 September 2021, a delegate of the Minister for Immigration (‘the delegate’) refused the applicant’s visa application, as the sponsor had exceeded the limit on the number of people that he could sponsor in a lifetime (‘the delegate’s decision’).[3]
[3] See clause 309.222 of Schedule 2 to the Regulations and Regulation 1.20J of the Regulations.
On 25 October 2021, the sponsor applied for a review of the delegate’s decision with this Tribunal.[4]
[4] Pursuant to sections 338(5) and 347(2)(b) of the Act.
The review applicant was represented in relation to the review.
The matter was listed for hearing on 17 September 2024. However, I have considered all of the information and evidence before me and find that a favourable decision may be made on the basis of this material without proceeding to a hearing.[5] The case is remitted for reconsideration.
[5] Pursuant to section 106(3) of the Administrative Review Tribunal Act 2024.
Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in my reasons as set out below. The reasons incorporate reference only to that information that I have found to be fundamental or materially…

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.

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Details

AGLC: WELDEMARIAM (MIGRATION) [2024] ARTA 112
Case: [2024] ARTA 112
Decision Date: 23 October 2024

CaseChat Overview and Summary

The case of Weldemariam (Migration) involves a dispute regarding the granting of a Partner (Provisional) (Class UF) visa, subclass 309. The applicant, who is the spouse of the sponsor, sought a visa following their marriage on 22 March 2016. However, the sponsor had previously sponsored two individuals for partner visas, and the couple now has a child born on 8 December 2016, Arsema. Despite meeting the initial sponsorship requirements, the applicant did not meet the prima facie criteria under Regulation 1.20J(1) due to the sponsor’s previous sponsorships. The case turned on whether the Minister could approve the sponsorship under Regulation 1.20J(2) due to compelling circumstances.

The primary legal issue was whether the Minister could approve the sponsorship under Regulation 1.20J(2) given the compelling circumstances. The Tribunal had to assess whether the evidence presented sufficiently demonstrated compelling circumstances affecting the sponsor's interests, warranting an exception to the usual sponsorship limitations. Factors considered included the birth of Arsema, the sponsor's role in his church and employment, and the potential risks he would face if forced to return to his home country.

The Tribunal found that the compelling circumstances did exist, including the birth of Arsema, the sponsor's significant role in his community, and the potential risks he would face if forced to return to his home country. The Tribunal concluded that the requirements of clause 309.222(1) were met, necessitating the remittal of the application to the Minister for reconsideration of the remaining criteria for a Subclass 309 visa. The Tribunal did not uncritically accept all the claims made by the applicant and sponsor but evaluated the evidence presented.

The final orders of the Tribunal were to set aside the decision under review and remit the application for a Partner (Provisional) (Class UF) visa for reconsideration. The Tribunal mandated that the applicant met the criteria under clause 309.222(1) 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

Decision makers are not required to uncritically accept any or all of the claims made by the applicant and sponsor, and I have not done so. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepts or rejects individual pieces of evidence.[12]CONSIDERATION OF CLAIMS AND EVIDENCE[12]Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67].Sponsorship The visa applicant is the spouse of the sponsor, who has been an Australian citizen since 11 July 1994. Based on the information before me I am satisfied that the sponsor is an Australian citizen.[13] The applicant and sponsor (‘the applicants’) have filed a copy of their Marriage Certificate with the Department which indicates they were married on 22 March 2016 in Ethiopia.[14] On the evidence, I am satisfied the sponsor sponsored the applicant at the time of application on 9 January 2019 and that he was over the age of 18 years (the evidence is that he was born in 1974) at the time of application. I am satisfied clause 300.213 is met.[13]See Department file.[14]See Marriage Certificate in the Department file. Sponsorship limitations The evidence before me is that the sponsor h as previously sponsored two other people for partner visas – one was granted in 1996 and one was granted in 2006. There were no children of either marriage. The applicant has filed divorce orders in relation to both marriages. This evidence means that the applicant does not meet, prima facie, Regulation 1.20J(1).Compelling circumstances Regulation 1.20J(2) provides that despite the provisions of Regulation 1.20J(1), a Minister may approve the sponsor of an application for a visa if satisfied there are compelling circumstances affecting the sponsor. The applicant and sponsor have had a child, Arsema Tekle, Hailemichael, on 8 December 2016 (‘Arsema’). The birth of Arsema is consistent with the sponsor’s movement records and return trip to Ethiopia in terms of timing of conception. The applicant and the sponsor are listed as parents on Arsema’s birth certificate.[15] [15]See birth certificate in the Tribunal file. Arsema is an Australian citizen by descent – a copy of her citizenship certificate dated 20 August 2018 has been filed. However, due to the visa situation of her parents Arsema is unable to reside in this country and still have the care of the applicant. A statement from the sponsor’s church has been filed, dated 8 September 2024, attesting to the significant role the sponsor plays in the congregation and the risks he would face if forced to return to his home country in order to raise his children as a family unit in the same house together with his wife. Similar statements have been filed by friends of the sponsor. An employment reference dated 6 September 2024 has been filed which states the sponsor has worked for his current employer for over a year and his departure would be a significant loss to the organisation.

Decision

Reasons for decision

On the evidence before me, I consider the requirements of clause 309.222(1) are met. Therefore, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.DECISION The Tribunal sets aside the decision under review and remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 309 (Partner) visa: clause 309.222(1) of Schedule 2 to the Regulations T. QuinnGeneral MemberDate(s) of hearing: 17 September 2024- cancelled.Representative for the Applicant: Ms Stephanie Leigh Camilleri

Ratio Decidendi

Legal Principle Established

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