1507128 (Migration)

[2015] AATA 3386

1507128 (Migration) [2015] AATA 3386 (8 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Osman Tawfik Kodi

VISA APPLICANT:  Mr Omran Siddig Tawfig Kodi

CASE NUMBER:  1507128

DIBP REFERENCE(S):  OSF2012/017595

MEMBER:Kira Raif

DATE:8 September 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 08 September 2015 at 5:17pm

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 April 2015 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Sudan, born In December 2004. He was included in the application for the Partner visa made by Ms Nemat Agab Salim Agila (the primary visa applicant) in October 2012. Ms Agila was granted the Provisional Partner visa on 16 April 2015. However, on the same day the delegate made the decision to refuse to grant the visa to the visa applicant because the delegate was not satisfied he was a member of the family unit of the primary visa applicant for the purpose of cl. 309.311 and cl. 309.321. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 4 September 2015 to give evidence and present arguments. The review applicant was represented in relation to the review by his registered migration agent.

4. The issue in the present case is whether the visa applicant is a member of the family unit of the primary visa applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. Clause 309.311 requires the applicant who seeks to satisfy the secondary criteria to be a member of the family unit of a person who satisfies the primary criteria in subdivision 309.21. At the time of decision, cl. 309.321 relevantly requires the applicant to continue to be a member of the family unit of the person who satisfies the primary criteria.

6. The term ‘member of the family unit’ is defined in r. 1.12. Relevantly, paragraphs (b) and (e) of that definition provides that a member of the family unit includes

   (b)      a dependent child of the family head or of a spouse or de facto partner of the family head; or
   …
   (e)      a relative of the family head or of a spouse or de facto partner of the family head who:

   (i)          does not have a spouse or de facto partner; and

   (ii)         is usually resident in the family head's household; and

   (iii)         is dependent on the family head.

7. The term ‘dependent’ is defined in r. 1.05A as follows

   (1)        Subject to subregulation (2), a person (the first person) is dependent on another person if:

   (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

   (i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

   (ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

   (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

   Is the visa applicant a member of the family unit of the primary visa applicant?

8. When making the application, the visa applicant claimed to be an adopted child of the primary visa applicant and the primary decision record, a copy of which the review applicant provided to the Tribunal, indicates that he is the nephew of the review applicant. The visa applicant is not seeking to meet the primary criteria for the grant of the Class UF visa and the Tribunal is not satisfied on the evidence before it that the visa applicant meets the primary criteria for the visa grant.

9. To meet the secondary criteria for the grant of the visa, the Tribunal must be satisfied that the visa applicant is a member of the family unit of the person who satisfies the primary criteria, that is, the primary visa applicant. The visa applicant is not the spouse of the primary visa applicant and is not a child of a dependent child. He does not meet the definition of the term ‘member of the family unit’ in r. 1.12(1)(a), and (c). The Tribunal finds that subparagraphs (2) – (9) of r. 1.12 are not relevant in this case. The relevant provisions are r.1.12(1)(a) and (e), to which the Tribunal now turns.

10. For the purpose of r. 1.12(1)(e), the Tribunal is satisfied that the visa applicant, given his age, does not have a spouse or a de facto partner. He meets r. 1.12(1)(e)(i). Information in the application form indicates that he has been living with the primary visa applicant since about 2009 or 2010 and for the purpose of this decision, the Tribunal accepts that he is usually resident in the household of the primary visa applicant. He meets r. 1.12(1)(e)(ii).

11. With respect to dependency, the primary decision record, a copy of which the applicant provided to the Tribunal, indicates that although the primary visa applicant has been meeting the visa applicant’s various expenses, she is unemployed and relies on the money sent to her by the review applicant. It is the review applicant who covers her living expenses, including for accommodation, food and other expenses. The review applicant confirmed in his oral evidence to the Tribunal that he is the only who is providing financial support to his wife and nephew and that his wife does not earn any money. In such circumstances, the Tribunal is of the view that the visa applicant merely acts as a conduit in distributing the funds that are provided by the sponsor.

12. In the circumstances of this case, the reasoning of the Federal Magistrates Court in Al Naqi[1] is relevant. The Court took the view that a ‘broad practical judgment’ is required in the circumstances of the particular case and this may require consideration of the underlying source of the support and the reasons for it. Riethmuller FM commented at [16] that ’on a broad and practical level financial support for a person’s relatives, from their spouse, can be considered support by them if their spousal relationship is an essential or substantial part of the reason that the support is provided.’

    [1] Al Naqi v MIAC [2007] FMCA 874.

13. In the present case, the secondary applicant is the nephew of the sponsor, rather than a relative of the primary visa applicant. (The Tribunal will deal with the matter of adoption below.) The Tribunal finds that the sponsor would have continued to provide the financial support to the secondary visa applicant, regardless of the nature of his relationship with the primary visa applicant. That is, the provision of the financial support from the review applicant to the visa applicant is not defined by, nor dependent on, the review applicant’s relationship with the primary visa applicant. As such, the Tribunal does not consider that the financial support can be attributed to the primary visa applicant. In the Tribunal’s view, the arrangement is that that the primary visa applicant distributes the funds supplied by the review applicant but she is not the source of funds. The visa applicant’s dependence is on the sponsor and not on the primary visa applicant.

14. The review applicant’s representative submits that although the money comes from the sponsor, once it is received by the primary visa applicant, that money becomes the primary visa applicant’s money and she is the one who decides how to distribute the funds and who provides support to the child. That is, once the money is hers, the source of money is no longer relevant because the money belongs to the wife and the child totally depends on the primary visa applicant’s funds. The representative submits that if a parent were to receive funds from Centrelink, for example, the dependence would be on the parent and not on Cenetrelink. The representative submits that dependence means who the child looks to for the provision of his needs and that is the primary visa applicant. In the Tribunal‘s view, that is not a correct interpretation of the term ‘dependence’. The primary visa applicant does not nothing more than distributes the funds that are sent by the sponsor. The source of funds is not irrelevant.  The Tribunal does not accept that dependence is defined by who has control over the physical distribution of money.

15. The review applicant informed the Tribunal in oral evidence that when he sends money to his wife, the agreement is that part of the funds would be used for the child’s needs. Thus, even if the review applicant’s interpretation of ‘dependent’ was correct (and the Tribunal does not consider that it is), the Tribunal does not accept that the primary visa applicant has the control of how the money is distributed. The money is sent for a specific purpose (the child’s needs) and that is the purpose for which she uses the funds. The primary visa applicant does not have a complete control of how the money would be spent because the money is to be spent on the child. The Tribunal finds that the money for the child’s basic needs for food, shelter and clothing comes from the review applicant and not the primary visa applicant. Even if part of the primary visa applicant’s own money is being used on the child, the Tribunal is not satisfied that the child’s reliance on the primary visa applicant is greater than his reliance on the sponsor.

16. The Tribunal has formed the view that the visa applicant was at the time of the application and at present, wholly or substantially reliant on the sponsor, and not on the primary visa applicant, for financial support to meet his basic needs for food, clothing and shelter. The Tribunal is not satisfied that at the time of the application and at present, the visa applicant’s reliance on the primary visa applicant was greater than his reliance on any other source (such as the review applicant). There is nothing to suggest that he is, or ever was, incapacitated for work due to the total or partial loss of his bodily or mental functions. The Tribunal is not satisfied that at the time of the application and at the time of this decision, the visa applicant was dependent on the primary visa applicant.

17. In his submission to the Tribunal of 29 June 2015 the review applicant’s representative submits that this interpretation of r. 1.12(1)(e)(iii) is erroneous and that it is not necessary that the applicant be dependent, and be a relative of, the same person, the family head. The representative submits that it is sufficient that the visa applicant is a relative of the family head and dependent on the review applicant as the family head is sufficient to meet r. 1.12(1)(e)(iii) because he is not required to be dependent on the primary visa applicant and be a relative of the same person.

18. The Tribunal does not agree with that interpretation. Regulation 1.12(1) links the notions of the family head and being a member of the family unit of another person. That is, the person who the applicant tries to establish as being a member of the family unit of, is the person who is the family head. It is not sufficient to state that the applicant is a member of the family unit of one person (the primary visa applicant) and dependent on another (the sponsor). The representative submits that it is not a requirement of r. 1.12(1)(e)(iii) that the visa applicant must be dependent on the primary visa applicant. In the Tribunal’s view, that is precisely the requirement of that subparagraph because the person seeking to be a member of the family unit of another person (who is the family head) must be dependent on the family head, that is, the same person.

19. The Tribunal accepts that the visa applicant need not be a relative of the primary visa applicant and that it is possible to meet the requirements of r. 1.12(1)(e) by being a relative of one person and a dependent of another. If the visa applicant was a relative of the review applicant and dependent on the primary visa applicant, he may have satisfied that requirement because it is sufficient that the visa applicant is a relative of the spouse of the family head, as r. 1.12(1)(e) expressly states. However, the visa applicant still needs to establish his dependence on the family head, who is the primary visa applicant for the purpose of r. 1.12(1)(e)(iii). He has not done that.

20. The representative’s submission of 29 June 2015 also appears to suggest that the family head could be the sponsor and not the primary visa applicant. The Tribunal also does not accept that the family head could be considered to be the review applicant. As noted above, r. 1.12(1) requires the visa applicant to be a member of the family unit of the family head. For the purpose of cl. 309.311 and cl. 30i9.321, the visa applicant must be a member of the family unit of the primary visa applicant and not the sponsor, so that the family head must be, in the Tribunal’s view, the primary visa applicant.

21. The Tribunal finds that for the purpose of r. 1.12(1)(e), the family head is the primary visa applicant. For the reasons stated above, the Tribunal is not satisfied that the visa applicant is dependent on the primary visa applicant and on the family head. The Tribunal is not satisfied that the visa applicant meets r. 1.12(1)(e)(iii) and r. 1.12(1)(e).

22. The Tribunal has also considered whether the visa applicant could meet the requirements of r. 1.12(1)(b). The visa applicant is a nephew of the review applicant. As such, the Tribunal is not satisfied that he is a dependent child of the spouse of the family head. (For the reasons stated above, the Tribunal finds that the family head is the primary visa applicant). The primary visa applicant stated on the application form that the child is her adopted son. No evidence has been presented to indicate there are formal adoption arrangements in place made in accordance with the Australian laws or formal adoption arrangements made under the laws of Sudan. The review applicant’s oral evidence to the Tribunal is that there are no formal adoptions in Sudan. The Tribunal is not satisfied that the requirements of r. 1.04(1)(a) and (b) are met.

23. For the purpose of r. 1.04(c), the review applicant claims that the child’s biological parents had to go into hiding in the mountains and left the child with the visa applicant and the sponsor. He claims that his family and the visa applicant are from the same clan and have known each other for some time before he and the primary visa applicant decided to marry. Although the child’s father attended the wedding, it is claimed that he has not been seen since then and may be presumed dead. The written submission to the delegate of 5 March 2015 explains that ‘the relationship between the boy and the visa applicant and the sponsor ‘is now in the form of a Kafala which is recognised under Sharia law as a form of custody and guardianship’ but not equivalent to an adoption. The review applicant provided to the Tribunal the primary visa applicant’s statement, made to the Judiciary Attestation Department of Sudan in 2011, indicating that she has had full custody of the child for more than two years. The Tribunal is prepared to accept, for the purpose of this application, that the primary visa applicant has been taking care of the child, who has been living with her for a number of years. The Tribunal accepts that she has the responsibility for the daily care and control of the child. However, that is not enough to establish adoption, as opposed to custody or guardianship.

24. The applicant provided to the Tribunal a declaration sworn on 7 September 2015, that his brother left the child to him and that they agreed, in accordance with the customary law, that he became the child’s adoptive parent from that time. The Tribunal does not accept that evidence. There is little probative evidence before the Tribunal about customary adoptions in Sudan and the usual practice. The review applicant has not established that the arrangements in relation to the child were made in accordance with the usual practice, or a recognised custom, in the culture of the adoptee and the adopter. This is particularly so, given the review applicant’s earlier submission to the delegate that the arrangement was more akin to guardianship or custody rather than adoption. The Tribunal does not consider that submission determinative, however, the Tribunal finds that the presented evidence is insufficient to satisfy the customary adoption requirements.

25. The Tribunal is not satisfied that the visa applicant is the adopted child of the primary visa applicant. As such, the Tribunal is not satisfied that he is a dependent child of the family head or of the spouse of the family head. The Tribunal is not satisfied the visa applicant meets r. 1.12(1)(b) of the definition of the ‘member of the family unit’.

26. The Tribunal is not satisfied that the visa applicant meets any of the paragraphs of r. 1.12. The Tribunal is not satisfied that the visa applicant is the member of the family unit of the primary visa applicant. The Tribunal is not satisfied that he meets cl. 309.211 and cl. 309.321.

27. The Tribunal is mindful of the representative’s submissions about the rights of the child and Australia’s obligations under international Conventions with respect to the rights of the child. The representative submits that the child will have no body to care for him if he cannot travel to Australia with the primary visa applicant. The Tribunal acknowledges these submissions but has no discretion with respect to these matters. Similarly, he representative submits that PIC 4015 and 4017 require a favourable decision because nobody else is able to care for the child and the child cannot live alone. The Tribunal does not consider that the Public Interest Criteria override the Schedule 2 criteria for the grant of the visa.

28. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The applicant argues that the child will be left without adult supervision and is unable to live independently. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    Conclusion

29. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa

    DECISION

30. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    Kira Raif
    Senior Member