1902070 (Migration)

1902070 (Migration) [2020] AATA 682 (9 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1902070

MEMBER:Linda Holub
DATE:9 January 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.
Statement made on 09 January 2020 at 9:51am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – Federal Circuit Court remittal – member of the family unit – dependants of primary visa applicant – wholly or substantially reliant – main source of financial support – earning capacity to support household – listed as ‘housewife’ on official documents – credibility concerns – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.05A, 1.12; Schedule 2, cl 309.311
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 7 May 2014 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The review applicant’s wife originally applied for the visa on 13 May 2013 on the basis of her relationship with her sponsor, the review applicant. She and her two sons were subsequently granted visas and are now in Australia. As part of her application she listed a number of secondary applicants, namely the mother of the review applicant, his two sisters and three brothers. They claim that they are dependent upon the primary visa applicant.
In this decision, the Tribunal will refer to the original primary applicant as the review applicant’s wife to distinguish her from the visa applicants who are the subjects of the review.
At the time of application the Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (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.
As the decision under review relates to the refusal of the secondary applicants, it is necessary for the Tribunal to consider whether the secondary applicants are members of the family unit of, and made a combined application with, a person who satisfies the primary criteria: cl 309.311.
The delegate refused to grant the visas on 5 May 2014, on the basis that the secondary visa applicants did not satisfy cl.309.311, because the delegate was not satisfied that the secondary applicants are wholly or significantly financially reliant upon the review applicant’s wife and that they are dependent upon her.
This matter is currently before the Tribunal pursuant to a Court Order made by the Federal Circuit Court [in] December 2018. The applicant originally applied for review to the former Migration Review Tribunal (MRT) on 11 July 2014. The MRT affirmed the decision of the delegate on 5 November 2015. The applicant applied for judicial review [in] December 2015, alleging jurisdictional error on four grounds. The Federal Circuit Court found that the fourth ground was made out and ordered that the Tribunal re-consider the matter.
The review applicant appeared before the Tribunal on 5 August and 24 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s wife and at the second hearing oral evidence was provided by the visa applicants by telephone from Pakistan. The applicants were assisted by a NAATI accredited interpreter in the Dari and English languages.
The review applicant was represented in relation to the review by his registered migration agent who attended both hearings.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

Background

The review applicant was born in Afghanistan in [year], he is an Afghani national and permanent resident of Australia. He lived with his parents and six siblings in [a village], Afghanistan. His family owned [Business 1], at which the review applicant worked. In 2006, he married his wife, the primary visa applicant. They have two children: one of whom was born in [date] and the second in [date].
Due to civil unrest in Afghanistan during 2007 and 2008, the review applicant and his family left Afghanistan, and lived in Quetta, Pakistan, claiming refugee status. The secondary applicants continue to live there as claimed refugees. The review applicant left Pakistan in 2010. He went to [Country 1], [Country 2] and then [Country 3]. He was recognised by the UNHCR as a refugee [in] 2011. The review applicant applied for a XB-200 Refugee visa to Australia on 30 December 2011. He included his wife, son, mother and siblings in the application form. On 3 May 2012, the review applicant was granted the Refugee visa, however the secondary applicants listed were not. The review applicant arrived in Australia for the first time [in] June 2012. His family remained in Pakistan.
Since being granted permanent residency in Australia the applicant spent time in Pakistan on several occasions including between [February] and [May] 2013; [September] until [December] 2014; from [July] 2016 until [November] 2017; and from [December] 2018 until [March] 2019.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the secondary applicants can satisfy the secondary criteria as set out in subdivision 309.3 of the Regulations. Specifically, the Tribunal must consider whether the secondary applicants are members of the family unit of, and made a combined application with, a person who satisfies the primary criteria: cl 309.311: in this case the review applicant’s wife.
The review applicant’s mother was born in [year] and the review applicant’s siblings, who are all younger than him, were born in [years deleted]. They are all citizens of Afghanistan and reside in Pakistan as refugees.
The Tribunal has before it both the Department and Tribunal files. The materials on file include, but are not limited to, the application form, and supplementary application forms, passport photos, various ID documents, bank statements, personal statements, extract of Marriage Certificate, medical reports/notes, rental agreements Department notes and the Department’s Decision Record and Notification letter.
Written evidence
The original primary visa applicant, who is the review applicant’s wife, and claimed head of the household for the six listed visa applicants, indicated in her visa application (Form 47), received at the Australian High Commission in Islamabad [in] May 2013, that she was unemployed. She wrote that it was because she was a “refugee in Pakistan at the moment”[1]. In response to the following question (question 26), where she was asked to “Give details of the dependant’s main source of financial support (eg. Relative, government welfare department)” she referred to her husband, the review applicant, and stated that he provides her with money.
[1] DIAC file, folio 31.
The visa applicants in their Forms 47A provided the same responses. That is, they all stated they are unemployed and their main source of financial support comes from the review applicant who provides them with money.
The review applicant’s wife provided the Department with a copy of a passport which was issued to her by the Islamic Republic of Afghanistan [in] 2018. The passport lists her as a housewife. Her ID Card/Tazkira issued in [2018] also refers to her as a housewife. Similarly, a document issued by the Interior Ministry – Head Office Census refers to her as a housewife.[2]
[2] DIAC file, folios 383, 392 and 395.
In a provided statement dated 14 August 2015, the review applicant wrote the following to a differently constituted Tribunal:
“Since coming to Australia, I have received payments from Centrelink. I have done some training at TAFE in [Subject 1] and [Subject 2] tried to find work, but have been unsuccessful, including because of my limited English-language ability, education and skills.
In June 2015, I started [working in Occupation 1] in [for] [a company]. I started working one to 2 shifts each week, although this is increasing as I am learning.
I have not earned much money whilst I have been in Australia. I have used the money that I received from Centrelink and the earnings to pay my living expenses of rent, bills, food, transport and other living costs. I have also saved money to be able to return to Pakistan to see my family.
I have visited my family in Pakistan twice, from [February] 2013 until [May] 2013 and from around [September] 2014 until? (sic) December 2014.
Soon after I first came to Australia in 2012, I arranged for the transfer of around $400 to my family. I gave this to a person who arranged for the money to be given to my family in Pakistan. I have not been able to provide financial support to my family, because of my financial circumstances.
When I returned to Pakistan, I took money to buy some clothes and household goods such as oil, rice and food for my family. I pay for my family and I to eat in restaurants”[3].
[3] Tribunal file [deleted], folio 135.
In relation to how the family was supported he wrote:
“My mother is too old and frail to work. In our culture she is not expected to work.
My sisters and brothers have never worked. The economic situation in the area in which my family live is very bad. There is no work for my brothers. It is also very dangerous to go out in the community and work, because of attacks by extremists against Azara and Shia people. My sisters are not married. In our culture, they are not to go out and work.
My wife has worked and supported the family.
In Afghanistan, my wife did [Occupation 2] work in our village. She mainly did this for our families and sometimes did this for neighbours and other people in the village, for which she sometimes received a small payment. It was not regular work or regular income, but she had the skills to do this work.
During the time that I was in Pakistan, from around 2008 until around 2010, our family mainly relied on the savings and the small income that I earned.
When I lived Pakistan in 2010, I paid a lot of money, around US$5000 to $6000 and agents to arrange for my travel to [Country 3]. I also took around US$1000 with me. This used much of the family savings.
After I left Pakistan, my wife needed to work and earn money to support the family.
My wife earned money by doing [Occupation 2] work. She [undertook various tasks].
My wife did work directly for people and also worked for a business called [Business 2], in [location]. My wife did not go to workplaces, such as the [shop]. My wife was given work to do, which she did at home. My wife is paid by the [amount] of work that she did.
When I returned to Pakistan in late 2014, I went to [Business 2] to speak to the owner, [Mr A] to ask for a letter confirming my wife’s work. [Mr A] said to me that he give letters like this. I told him why I needed the letter. [Mr A] agreed to give me the letter, but I was required to pay for his lawyer to prepare the letter.
When I was in Pakistan in late 2014, my wife was doing some work for the [Business 2] and was also doing [Occupation 2] work directly for other people. My wife is also doing [Occupation 3] for other people in the home area, including [various tasks]. The [Occupation 3] was better paid. I went with my wife to see some of the places that she worked at people that she did the work for. My wife has told me that she is doing more [Occupation 3] and less [Occupation 2] work.
[Occupation 3 work] that my wife does is casual and she receives payment of money. My wife has a small number of [employers] that she regularly [works] for and she also does work for other people, often at short notice when needed. My wife has told me that she is sometimes asked to do work which takes a short time, less than an hour, but it is still income.
Living costs of the family in Pakistan include rent, power, clothing and food costs. The cost of living is not high, although some things, such as good meat, is expensive. The living costs of our family are paid by my wife.
I requested and obtained a letter from [Business 2] to show my wife’s work. It is not possible for my wife to obtain documents to show her other [Occupation 2] and [Occupation 3 work].
In the visa application, including in the forms and information given during the application process, it was stated that my wife did not work and that I supported the family. This is incorrect. I did not know that it was important to give information about my wife’s work. The migration agents that prepared the visa application for my family and I, did not tell me that this was important.
In our culture, it is not respectful for a wife and mother to be working to support a family. It is regarded as shameful for me, for my wife to be working and supporting the family, so I do not talk about this much.
My wife has been working and earning money in Pakistan to support herself, our son, my mother and her siblings, in the past years, including before the visa application was submitted in May 2013.
My wife is head of the family and house in Pakistan. All of the family respect my wife. My siblings treat my wife like she is their mother”[4].
[4] Tribunal file [deleted], folios 134 and 135.
The letter provided by [Business 2] appears to be undated but has a declaration by the applicant’s migration agent dated 14 August 2015 certifying it is a copy of an original. It states that the review applicant’s wife has three years’ experience in [Occupation 2] referring to:
[Deleted][5].
[5] Tribunal file [deleted], folio 42.
In a Statutory Declaration dated 14 May 2018 provided to the Department, the review applicant wrote that when he visited the family in Pakistan in 2013, 2014 and 2017, he paid for some of the family living expenses, such as food, cooking oil and other household things. He also stated that he sent $1000 in April 2018 to his wife for her to use to travel with their sons to Afghanistan to obtain new travel documents and that he will support them to travel to Pakistan to attend health examinations[6].
[6] DIAC file, folio 354.
Evidence at first hearing – review applicant
When asked about his living situation in Pakistan and previous employment, the review applicant stated that he lived in Pakistan with his family. He was initially working at a [Business 1], and then changed to selling [items] on the street.
The Tribunal asked the review applicant about his employment history in Australia. The review applicant confirmed that he was in receipt of Centrelink payments, however this stopped with he started [Occupation 1] in either 2014 or 2015.
The Tribunal asked the applicant how he was able to support himself when he spent extended periods in Pakistan, particularly on the occasion he was there for 16 months. He stated that a friend supported him financially. He claimed the friend sent him money. When asked if he had evidence to substantiate his claim, he stated that he had no receipts because they were not required. When asked if there may be some bank records showing the transfers of money, he responded that he would provide copies to the Tribunal. No written evidence was provided showing that during the review applicant’s stay in Pakistan his friend supported him by transferring funds to him.
The review applicant stated that he was in Pakistan because he was sick. He stated he had a fear of flying, and a fear of being in crowds and lifts. The Tribunal questioned his fear of flying, given that he had flown to Pakistan on numerous occasions. In response, the review applicant stated that his problem was only small and got worse over time. The review applicant stated that he was prescribed medication in Pakistan.
When asked what he did in Pakistan during his visits, the review applicant stated that he did nothing. When pressed to elaborate he stated that he did not go to the Mosque, but he occasionally visited friends.
The Tribunal questioned the review applicant about why his wife declared in her visa application that she was not employed, despite producing evidence to the contrary. The review applicant claimed that in Pakistan, it is not good to say that she worked, he stated that it would be different if she were a doctor or engineer, however as she was a [Occupation 3], it was not good to say she worked. The Tribunal put to the review applicant that it was not referring to what they told other people about his wife’s employment, but what information was put on the visa application form. The applicant responded that he is not a literate person and he only learnt English in Australia. When asked who helped his wife complete the application form, he stated he does not know.
The Tribunal asked the review applicant what his wife did for work. The review applicant stated that when he left Pakistan in 2010, his wife [worked in Occupation 3], and before that, [Occupation 2]. The review applicant was not able to be more specific.
The Tribunal was concerned with the review applicant’s statement that he did not know who helped with the completion of the application forms and the fact that he was unable to be more specific about his wife’s employment. This concern stems from the review applicant’s written claim that he spoke with his family daily, that he spent significant amounts of time with the family in Pakistan at various times, that the application for his wife and the secondary applicants was lodged just days after he returned to Australia from Pakistan in 2013. This gave the appearance of the review applicant being evasive.
The Tribunal questioned whether the secondary applicants worked in Pakistan. The review applicant stated that they did not because they were not allowed to work as they did have identity cards.
The Tribunal questioned how much the review applicant’s wife earned to be able to cover the living costs of seven adults, including his mother, [number of siblings], as well as for herself and their children. The review applicant was evasive in his answer and told the Tribunal to ask the primary visa applicant, and that he has already provided the information to his lawyer. The Tribunal reminded the review applicant that his legal representative cannot give evidence on his behalf. The review applicant responded that in the latter period his wife was paid more for [Occupation 3].
Evidence provided at first hearing – review applicant’s wife
The Tribunal proceeded to take oral evidence from the review applicant’s wife. She stated that since migrating to Australia, the review applicant travelled to Pakistan three times. She stated that on the first and second occasion he stayed there for three months and on the third occasion he was there for more than a year. The review applicant’s wife stated that he did not work he just stayed at home and occasionally went for a walk. She stated that he had some medical issues and referred to his depression. She stated he had lots of tension and he felt as if he was suffocating. The Tribunal asked if he had any anxieties. She responded that he had lots of panic attacks and that these would occur if he felt claustrophobic, was in crowds or in dark.
The review applicant’s wife stated that when the family lived in Pakistan from 2008 until the review applicant left in 2010 he sometimes worked in the [Business 1]. She stated that no one else in the family worked because the review applicant’s brothers were young and they did not have identity cards. The Tribunal asked the review applicant’s wife whether she worked. She stated that she did [Occupation 3 work]. She said [her employer] had relatives overseas so they paid her more than would normally be expected. When asked when she did this work, she explained that it was when her husband was on his way to Australia.

The Tribunal asked the review applicant’s wife what sort of work she did prior to the [Occupation 3] role. She responded that she did some [Occupation 2 work] on a private basis. The Tribunal asked her if she did any [Occupation 2 work] for anyone. She responded that she did not.
The Tribunal asked the review applicant’s wife how she was able to support herself, her children and six adults on the money she earned. She said that she could manage sometimes. The Tribunal put it to her that it did not understand how she earned enough money to support that number of people. She responded that she also did some [Occupation 3 work]. The Tribunal asked to clarify whether she meant at the same time as she undertook the [Occupation 2] work.
The Tribunal with for her that she not undertake the [Occupation 2 work] for a shop and that she undertook the work privately. She responded that she worked for someone from the Punjab and that she did [Occupation 2 work]. She reiterated that she did [certain work] and that she did not do [specified task 2].
The review applicant’s wife stated that she was the only one who did any work and that she got the [Occupation 3 work] when the review applicant had left Pakistan to travel to Australia. She stated that it was better paid than the [Occupation 2] work.
Evidence provided at the second hearing – review applicant
At the commencement of the second hearing held on 24 September 2019, the review applicant provided several untranslated documents regarding his health. The applicant’s migration representative explained that the issue of the review applicant’s health arose at the first hearing so these documents were provided to corroborate that oral evidence. He acknowledged that they are untranslated and provided in a language other than English. The interpreter confirmed that the review applicant’s name is written on each of the documents.
The Tribunal explained it could only give very limited weight to the documents, because aside from a few words, for example, a reference to depression at folio 77, references to [medical condition] at folio 79; references to phobia at folio 78, page 2 of folio 79 and references to medication, they are not in English. The Tribunal also referred to the fact that some of the documents are date stamped and the Tribunal has some concerns that they could be date stamped at any time. In addition, some of the documents state NOT VALID FOR COURT OF LAW. The Tribunal acknowledged that although the Tribunal is not a court of law its proceedings can reasonably be taken to be quasi-juridical.
The review applicant also provided a copy of a rental agreement made between his wife and the property owner where the visa applicants reside, for the period between 19 August and 18 January 2020. In the letter provided to the Tribunal prior to the hearing, it states that this is evidence that his wife continues to be the ‘family head’ of the household.
The Tribunal asked the review applicant how this rental agreement was made given his wife was in Australia at the time it was executed. He stated that when they received the document, she signed it and sent it back. When asked why she needed to be the leasee on this agreement, the review applicant responded that the landlord trusted his wife. When asked if this meant the landlord did not trust his mother he responded that his mother does not work.
The Tribunal notes that the review applicant’s wife executed a similar agreement for the period 20 March until 19 August 2019, prior to her departure from Pakistan. When asked whether any previous agreements were in existence, the review applicant stated that prior to that time, his wife was paying the rent monthly but because she was departing Pakistan the landlord considered it was better that the rent be paid in advance as the other family members do not work.
The review applicant also provided a medical certificate dated [September] 2019 from his wife’s general practitioner which states that she is [number] weeks pregnant, that she is stressed due to her new circumstances and changed environments having arrived in Australia [in] March 2019. It also states that she will not be able to travel overseas due to her pregnancy and the stress of travel. It states that she has just started to settle and would benefit from just staying in Australia.
The relevance of this medical certificate is to demonstrate that although the review applicant’s wife is in Australia because of her condition, she remains the head of the household. She was required to come to Australia by the Department of Home Affairs before the grant of her visa lapsed.
The review applicant also provided a copy of his wife’s [Bank 1] bank statement for the period [June] to [September] 2019. He stated that this provided evidence that she is in receipt of Centrelink payments and is able to support the visa applicants who are the subject of this review.
The Tribunal asked the review applicant about his income. He stated that it varies from week to week because he is a [Occupation 1]. When asked if his income is deposited into a bank account he stated it is. The Tribunal asked him to provide bank statements for the same period as that of his wife which he did subsequent to the hearing.
The Tribunal asked the review applicant about remittances made to Pakistan. He stated that an amount of $500 was made from his wife’s bank account approximately three to four months ago. He stated that she also sent $700 through a broker. The Tribunal invited the review applicant to point out the transaction on the bank statement. He responded that he is not familiar with such statements; a friend assists him when he has a problem. In relation to the receipt for the $700 transfer, the review applicant stated that he may have it at home but maybe not.
The Tribunal invited him to provide any evidence he has in relation to the remittances. The review applicant stated that he does not know what his family uses the money for. He stated that the rent was paid separately in advance. He does not know which of his family members handles the financial matters now that his wife is in Australia. No one tells him about such matters. The Tribunal found this statement implausible that the review applicant was unaware of how the family handles arrangements in the absence of his wife.
Evidence provided at second hearing – review applicant’s wife
The original primary applicant gave evidence that she transferred money to her husband’s family on two occasions for amounts of $700 and $500. She stated the family used money for household expenditure, such as rent and groceries. She stated that her brother-in-law [the fifth-named applicant] handles financial matters on the family’s behalf now that his wife is in Australia.
The original primary applicant stated that she made a new rental agreement since coming to Australia. She stated it she signed it and sent it through the internet. Prior to that she made a rental agreement just before she left. Before that she paid the rent monthly but the landlord wanted it paid in advance because it was hard for the family to do so.
Adverse information put to the applicant
The Tribunal put to the review applicant potentially adverse information in the terms required under s.359AA of the Migration Act. The information was contained in a departmental file note dated 18 March 2014, which recorded a conversation between the review applicant and an officer of the department. The relevant extract reads:
“I asked how his mother and siblings were supported and he confirmed that he sends them money and they also live off money he left with them that was from his business prior to migrating”[7].
The review applicant responded that he did not send them money but left money when he departed Pakistan. The Tribunal again referred to what was recorded in the file note. He responded again that he did not send his family money and stated that he had never spoken to the Department. The Tribunal provided more details in respect of the phone call recorded in the Department’s file note. The review applicant was then able to recall the conversation. He stated that he was a [Occupation 1] and someone called him and asked him if he had money at home. He stated yes and then he was asked if he sends money sometimes. He stated that he responded that he did send money because it proved that he was employed. The review applicant stated that if you tell immigration you work it is easier to obtain a visa. He stated that he was told by friends to say that he is working. He stated that he is not aware of the law. He stated that he now has a better understanding.
[7] DIBP file, folio 241.
Evidence provided at second hearing – visa applicants
The Tribunal telephoned the visa applicants in Pakistan who aside from the review applicant’s mother were in the same room together. The Tribunal was advised that his mother was unable to give evidence as she had very high blood pressure and was with a neighbour.
The Tribunal spoke with the applicant’s brother, [the fourth named applicant]. The Tribunal invited him to provide any evidence he wished to be taken into consideration by the Tribunal. He stated that they are in a very bad situation and have a very difficult life. He stated that when his sister-in-law was in Pakistan they had a good life but since she left it has been very difficult.
The Tribunal spoke with the applicant’s brother, [the fifth-named applicant]. He stated that the family received two remittances from the review applicant’s wife: one of $500 and the other of $700. He stated they use the money for food and household expenditure, such as rent. When asked what evidence he wished to provide he stated that life is very difficult since his sister-in-law left and they are not safe. The Tribunal asked how she protected their safety. He responded that she played an important role and protected them. When pressed as to how the review applicant’s wife kept them safe, he responded that she knew when it was safe.
The Tribunal next took evidence from the review applicant’s brother, [the sixth-named applicant]. He was invited to make any oral submissions he wished. He stated that the review applicant’s wife is like a mother to him. He stated he is not happy without her and that life is not good. He stated she looked after them a lot.
The review applicant’s sister [the second named applicant] stated that his wife did everything for them so they would be more comfortable. She stated they can’t live without her and they miss her a lot. She stated that it is hard for them to live without her in Pakistan. She stated that she would like to come and live in Australia.
The remaining witness, [the third-named applicant] stated they the review applicant’s wife did a lot for them. She stated the situation is very bad and they have no one to look after them. The Tribunal put to her that they are all adults and their mother is there. She responded that even though they are adults they need her. Their only request is to come here and get together with the review applicant’s wife.
The Tribunal agreed to provide until 2 October 2019 for additional evidence to be provided. On that date, the review applicant sought a further week which was granted.
Post-hearing written evidence
On 9 October 2019 the Tribunal received further submissions from the review applicant. These included:
· a covering letter from the review applicant’s legal representative.
The letter lists the attachments to the letter and makes submissions regarding the evidence provided.
·a statement from the review applicant.
It refers to the fact that he has worked as a [Occupation 1] in Australia and that his income is deposited into his [Bank 1] bank account and shows as [employer] payments. He states that the family is in receipt of Family Tax Benefit and Rent Assistance and that the money goes to his wife for her use. He explains that the first payment was made into his account [in] June 2019 but that subsequent payments have been made directly into his wife’s [Bank 1] bank account. He also explains a transfer of $2,500 to his wife following payments into his account by Centrelink. The review applicant states that he helped his wife make two transfers to the family in Pakistan.
·a statement from the review applicant’s wife.
The statement is broadly reflective of the review applicant’s statement referred to above.
·A copy of the review applicant’s bank statements for the period 28 February until 26 September 2019 and his wife’s bank statement for the period 29 March until 25 September 2019.
·A translated copy of receipts for the transfer of amounts of $500 and $700 to the review applicant’s brother, [the fifth-named applicant] on 26 June 2019 and 29 July (NO YEAR STIPULATED).
Section 359A
On 23 October 2019 the Tribunal wrote to the applicant under s.359A of the Migration Act. The letter explains that the Tribunal is required to invite to him to comment on or respond to certain information which the Tribunal considers would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decisions under review.
The particulars of the information put to the applicant in the letter are that:
•All the visa applicants, in completing the Form 47A at question 26, listed him as their main source of financial support by providing them with money.
•His wife, the original visa applicant, provided the former Department of Immigration and Citizenship with a copy of her passport issued by the Islamic Republic of Afghanistan [in] 2018 which refers to her as a housewife.
•Your wife’s ID card/Tazkira, issued [in] 2018, refers to her as a housewife.
•A document issued by the Interior Ministry- Head Office Census, dated [in] March 2017, refers to his wife as a housewife.
The letter explains that the information is relevant to the review because of the claims that the visa applicants are members of a family unit of his wife, and that the visa applicants are wholly or significantly financially reliant upon his wife and are dependent upon her. The information provided in support of the application is inconsistent with other information and evidence provided.
The letter also explains that if the Tribunal was to rely on this information in making its decision, the Tribunal may conclude that the visa applicants are not wholly and significantly financially reliant on his wife and dependant, as her claimed role as a ‘housewife’. Furthermore, if the Tribunal is unable to satisfy itself that a ‘housewife’ is able to provide for a family of six adults and two children, the Tribunal may find that the visa applicants are not wholly and significantly financially reliant on your wife, and dependant on her, as they claim they are dependent on you and are provided money by you.
The applicant was invited to provide comments on or respond to the above information in writing by 5 November 2019 or to seek additional time if he is unable to do so. The applicant sought and was granted additional time to respond.
On 13 November 2019 the Tribunal was provided with a substantive response which included statements by the applicant and his wife both of which were signed on the same date.
The applicant responded in the following manner to the particulars of the information contained in the Tribunal’s section 349A letter:
“The letter of the Tribunal states “All the visa applicants, in completing the Form 47A at question 26, listed you as their main source of financial support in that you provide them with money”.
The information given in the answer to question 26 of the Form 47A is incorrect.
During the hearing held in the Tribunal on 5 August 2019, I believe that I said that this information was incorrect.
Also, I previously gave information to the Tribunal about my financial situation and my wife’s financial support of the Visa applicants in a statement dated 14 August 2015.
My [wife] has been and is still the main source of financial support of all of the visa applicants.
The Form 47A was signed by my wife and family members on 14 October 2012. The Visa application was submitted to the Australian High Commission, Islamabad, Pakistan [in] May 2013.
[8] AAT file, folio 125.
My circumstances on 14 October 2012 and 13 May 2013 below”[8].
The statement goes on to outline the circumstances under which the applicant left Pakistan in 2010 his travel through [Country 1], [Country 2] and [Country 3] and his subsequent recognition as a refugee by the UNHCR after which he was granted a refugee (subclass 200) visa by the Australian Government. In his statement the applicant states that after he came to Australia he received income from Centrelink and that as a result of his small income he was unable to financially support his wife and family. In his statement, the applicant states “I believe that I only transferred money once in 2012, around $400 to my family. I used the income from Centrelink for my living costs of rent, bills, food and transport and I saved money to be able to return to Pakistan to see my family. I visited my family in Pakistan from [February] 2013 until [May] 2013. In my situation that I have explained above, in 2012 and 2013, I was not the main source of financial support to the Visa applicants. I’m still not the main source of financial support to the visa applicants. The statement repeats information previously provided that the applicant’s wife worked and earned sufficient money in Pakistan to financially support the family and that she has been and is still the main source of financial support to the visa applicants.
The statement also addresses the issue raised in the Tribunal’s letter that’s the applicant’s wife referred to herself as a housewife. In response to that issue the applicant wrote in his statement:
“My wife has been the head of the house in Pakistan, in which she, our children and our other family members have lived. Although my wife has been ahead of the house, my wife also worked in Pakistan to earn money to support the household.
My wife and I gave information to the Tribunal about the type of work that she did and the way that she worked in Pakistan. My wife received payment by cash for her work, including [Occupation 3 and Occupation 2 work]. My wife is not educated she cannot read or write. The type of work that she did in Pakistan is of a low status. My wife is regarded as a housewife, not as having a job or occupation.
Although the government documents state that my wife is a ‘housewife’, my wife worked and earned money in Pakistan, which she used to financially support the household in which she lived with my mother, sisters and brother”[9].
[9] AAT file, folio 125.
The applicant’s wife’s statement makes the following responses to the issues put to the applicant in its 359A letter of 23 October 2019:
“I agree that the following documents state that I am a ‘housewife’
a: Afghanistan Passport issued [in] 2018.
b: Afghanistan ID card/Tazkira, issued [in] 2018.
c: Afghanistan document issued by the Interior Ministry - Head Office census dated [in] March 2017
When I was in Pakistan and these documents were issued, I was the head of the household that I lived in, with my children, mother-in-law, sisters-in-law and brothers-in-law. My husband, [the applicant] was in Australia for most of the time since 2010 and I was responsible for caring for everyone and for the household in Pakistan.
As well as being the head of the house, I also worked outside the house. I did [Occupation 3 and Occupation 2] work, which is regarded as being of a low status, I was paid in cash for this work.
When the Afghanistan documents were issued to me, I was not asked what my occupation was. As I am a woman, mother, not educated and illiterate, which would have been clear to the people I met with, it was assumed and stated that in the documents that I’m a housewife.
It was difficult, because I am a woman to apply for and obtain government documents”[10].
[10] AAT file, folio 124.

The statement goes on to explain that she was treated rudely and disrespectfully when she applied for and obtained passports for herself and her two sons in Afghanistan and that she was required only to answer questions put to her. The applicant’s wife also refers to her lack of literacy meant that she was not aware that that their passports were issued in different names to their birth names. She repeats information regarding the fact that she worked and earned money and supported the visa applicants and her sons. She states that as their “standard of living was poor and [their] living costs were very low, [she] earned enough money to support the household. All of the family members were mainly dependent on [her]. Since coming to Australia, [she] has continued to provide financial support to the family”[11]
[11] AAT file, folio 124.
Findings
The Tribunal finds the review applicant’s oral statement that he does not know who helped his wife and family complete their Partner visa application implausible particularly in the light of his written evidence that he spoke with the family daily. Furthermore, the Tribunal has had regard to the fact that the review applicant was in Pakistan from February until [May] 2013. The visa application was lodged on 13 May 2013. The Tribunal considers this claim shows an evasiveness on the part of the review applicant.
The review applicant’s wife was listed on the Partner visa application form as a refugee as were all the secondary visa applicants. Although it was claimed that she originally went to Pakistan when she was young and therefore her status there allowed her to work, no evidence was submitted to support this claim. The Tribunal does not accept this claim.
The Tribunal is concerned that the original primary applicant wrote on her application form that the review applicant provided her with money and that on various official Afghani documents she was listed as a housewife, but has since claimed that she has solely been supporting a family of seven adults and her children for an extended period.
The Tribunal does not find the review applicant’s explanation as to why the application form stated that his wife and dependant applicants were dependent on him satisfactory. Although the Tribunal accepts that culturally it may not be appropriate for a wife and mother to be working to support a family, it does not accept that the form was completed on the basis of what is culturally acceptable in Pakistan or Afghanistan.
The Tribunal is prepared to accept claims that the review applicant’s wife earned an income for her [Occupation 2] work and later for [Occupation 3] and at times she did this work concurrently.
However, the Tribunal does not accept that the review applicant’s wife, as the head of the household, was able to earn sufficient money to support herself, her two children and the secondary applicants. The Tribunal acknowledges that it may be difficult to obtain evidence in the case of a person who is doing [Occupation 2 work] and/or [Occupation 3 work] to obtain evidence but did not find the oral evidence sufficiently compelling. It was self-serving, short of detail and was inconsistent with written information originally provided. The Tribunal is of the view that the claims regarding the review applicant’s role as head of household and her income earning was contrived after the visa application was refused.
The Tribunal has considered whether the income of person doing [Occupation 2 work] and/or [Occupation 3 work] could sustain a family of seven adults and two children and would enable the secondary applicants to be wholly or substantially reliant on the review applicants wife for their basic needs for food, clothing and shelter and that their reliance on her was greater than their reliance on any other person. The Tribunal provided an opportunity for the review applicant and his wife to put forward evidence regarding this or to explain how she managed to do so. Neither were convincing in their oral evidence. The review applicant was evasive in his answer and told the Tribunal to ask his wife, and that he has already provided the information to his lawyer. For her part, the review applicant’s wife stated that she managed sometimes and also referred to doing [Occupation 3 work] at the same time as doing [Occupation 2] work. The Tribunal would have expected some more detail as to how she managed to support the entire family including the secondary applicants if this was actually the case.
Oral evidence was provided that the review applicant’s wife was paid better than other people because the [employers] she worked for had relatives overseas. No evidence was provided to substantiate this claim. Even if the Tribunal gives this claim positive weight, it is difficult to accept that the above average income the [employers] paid her was sufficient to cover the living expenses of the secondary applicants, in addition to herself and her sons. The Tribunal considers it is far-fetched to claim that a female refugee woman from Afghanistan working in the sort of work it is claimed she undertook could support the family for an extended period from 2012/3until 2019.
The Tribunal has considered the review applicant’s claim made in his 14 August 2015 statement that incorrect information was provided in the application form regarding his wife’s employment because he was unaware that it was important to provide such information and that the migration agents that prepared the visa application for his family did not tell him it was important. The Tribunal does not accept this as an explanation. This contradicts the review applicant’s claim that he does not know who completed the forms and raises concerns about his credibility. Furthermore, it can reasonably be expected that when information is provided in visa application forms that accurate information is provided and that it reflects the facts.
The Tribunal has given positive weight to the Department’s file note dated 18 March 2014, which recorded a conversation between the review applicant and an officer of the Department during which he stated that he sends the family money and they also live off money he left with them that was from his business prior to migrating. The Tribunal considered his explanation at hearing regarding the inconsistency in his evidence that he made claims about working and sending money because he was told it would be easier to obtain a visa a contrivance. If the review applicant did make statements to the Department claims regarding his support of the family which were untrue because of advice he received from friends, it undermines his credibility in any event.
The review applicant has submitted and the Tribunal heard corroborating oral evidence from review applicant’s wife and the visa applicants that the review applicant’s wife has sent two remittances totalling $1,200 since she arrived in Australia. The Tribunal accepts that funds were transferred from her bank account. However, the fact of $1,200 being transferred from her account does not satisfy the Tribunal that the secondary applicants continue to be wholly or significantly reliant on her.
In addition the evidence of the secondary visa applicants was vague and lacked any detail. They made general statements about life without the primary applicant referring to missing the original primary review applicant, not being happy, not being safe, rather than providing details on how they are wholly and substantially dependent on the review applicant.
The Tribunal has had regard to the length of time the review applicant spent in Pakistan - a total of some 26 months between February 2013 and March 2019 - and whether he may have undertaken some sort of work during those periods and contributed to the household. The Tribunal is prepared to accept that he suffered from anxiety and depression at some point (medical certificates provided are dated 2017) but did not put significant weight on those documents as they were not in English. The evidence did not convince the Tribunal that the review applicant was unable to work at least during some of his stay in Pakistan over the years from 2013 until 2019 even if he did suffer from a fear of flying and other anxieties.
The Tribunal has considered statements made in the review applicant’s wife’s statement of 13 November 2019 further explaining why she was listed as a housewife. The Tribunal has had regard to the fact that yet another different explanation was provided for this and this raises concerns about the claims made. The Tribunal does not accept the new explanation that it was assumed that she was a housewife when she obtained Afghani documents in 2017 and 2018. The Tribunal considers this a concocted explanation following the Tribunal’s letter of 23 October 2019. Regardless, even if the Tribunal were to accept the claim, it would not extinguish the Tribunal’s concerns that the overall evidence provided did not satisfy the Tribunal that the review applicant’s wife earned enough money to enable the secondary applicants nd that they were wholly or substantially reliant on her for their basic needs for food, clothing and shelter and that their reliance on her was greater than their reliance on any other person to meet their basic needs for food, clothing and shelter. There is nothing in the evidence provided to the Tribunal indicating that the secondary applicants were reliant on the review applicant’s wife because they were incapacitated for work due to total or partial loss of the secondary applicants bodily or mental functions.
Given these findings the Tribunal is not satisfied at the time the visa application was made and at the time of this decision, the secondary applicants do not meet the requirements of Regulation 1.05A the Migration Act and do not satisfy Regulation 1.12.
For the reasons above, the visa applicants do not satisfy the criteria for the grant of the visas.
DECISION
The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.
Linda Holub
Member

[2020] AATA 682

9 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction