1932917 (Migration)

1932917 (Migration) [2020] AATA 5477 (1 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1932917

MEMBER:Justin Meyer
DATE:1 October 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.311 of Schedule 2 to the Regulations
·cl.309.321 of Schedule 2 to the Regulations

Statement made on 1 October 2020 at 3:10pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – member of the family unit – wholly or significantly financially reliant upon the primary applicant – money transfers – secondary applicant is deaf – family financial arrangements – family head – usually resident in the same household – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.05A, 1.12; Schedule 2, cls 309.221, 309.311, 309.321
CASES
Fusi v MIAC [2012] FMCA 1037
Huang v MIMA [2007] FMCA 720
Huynh v MIMA [2006] FCAFC 122
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 11 November 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 23 June 2013 on the basis of her relationship with her sponsor, the review applicant. At that time, 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.
The delegate refused to grant the visa on the basis that the secondary visa applicant (“the secondary applicant”) did not satisfy cl.309.311 because they were not satisfied that the secondary applicant is wholly or significantly financially reliant upon the primary applicant. In cumulative consideration of the above information, he was not satisfied she is a ‘member of the family unit’ of the primary applicant and does not satisfy the criteria set out in sub regulation 309.311.
The review applicant appeared before the Tribunal on 23 September 2020 to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video using Microsoft Teams, 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 applicant did not raise any concerns as to conducting the review hearing by video, and confirmed their ability to do so. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The review applicant was self-represented.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
As it is apparent from identification documents and other evidence that the secondary applicant is the sister of the primary applicant and sponsor and was normally resident in the primary applicant’s household of which is she is head, the issue in the present case is whether the secondary applicant was and is dependent on the family head as defined in r.1.05A.
Clause 309.311 requires a secondary applicant to be a member of the family unit of the primary applicant at the time of application. Clause 309.321 requires a secondary applicant to continue to be a member of the family unit at the time of decision. Regulation 1.12(1) defines ‘member of the family unit’ and r.1.05A(1) defines ‘dependent’.
In assessing whether the secondary applicant meets the definition of a member of the family unit of the primary applicant as required in clause 309.311, the secondary applicant must be 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
The delegate noted that:
·The secondary applicant is claimed to be sponsor’s sister. It is therefore acknowledged that the claimed familial relationships fall under the definition of relative as set out in the regulation 1.12(1)(e).
·It is further claimed that the secondary applicant lives with and is dependent on the primary applicant under the meaning the Regulations.
·The secondary applicant declared to never have been married or been in a de facto relationship and that her dependence of the secondary applicant on the primary applicant has been in existence for a substantial period immediately before the lodgement of the application.
·The primary applicant had declared on departmental forms for this application that she has never been employed. It is further consistently claimed that the primary applicant is also financially reliant on the sponsor for all of her and the secondary applicants’ daily needs.
·A telephone interview was conducted with the primary applicant on 14 October 2019 to obtain information about the circumstances of the applicants. During the telephone interview, the primary applicant advised that she is only engaged in household duties and also does some tailoring for her children and sometimes she receives orders from other people and charges 400 to 500 Pakistani Rupees per dress. The primary applicant further informed that whatever money she earns from the tailoring is spent on buying shoes for herself and her children. When the primary applicant was asked what other source of income she has, she informed that the sponsor sends regular remittances to support the family.
·The primary applicant was counselled at the time of interview that based on the information provided on this application; the secondary applicant does not meet the requirements, as she has not demonstrated to be dependent on her. The primary applicant advised that the secondary applicant is dependent on her and has no one in the family.
·Based on the information provided by the primary applicant, the delegate was not satisfied that the secondary applicant is wholly or significantly financially reliant upon the primary applicant. The secondary applicant has declared that she resides with the primary applicant and is dependent on her, despite the fact that the primary applicant is unemployed and fully dependent on the sponsor herself.
The relevant familial relationships are as follows:
·[name], aged [age] – secondary applicant
·[name], aged [age] – primary applicant
(These applicants are sisters, as evidenced by identity documents)
·[the review applicant], aged [age] – sponsor
(The sponsor is married to [the primary applicant])
The issue in the present case is whether the secondary applicant is wholly or substantially financially reliant upon the primary applicant.
CONSIDERATION OF CLAIMS AND EVIDENCE
In respect of the term ‘dependent’, the judgement in Huynh v MIMA [2006] FCAFC 122 establishes that the words of the Regulations do not carry any implication of necessity, and the question in considering the terms of r.1.05A(1) is whether as a matter of fact the first person (the secondary applicant) is wholly or substantially reliant on the other person (the primary applicant) for financial support to the specified level to meet the basic needs specified in the definition. Both the expression ‘substantially reliant’, and r.1.05A(1)(a)(ii) require consideration of the level of reliance a person has on another person in comparison with his or her reliance on other persons or sources of support. Courts have held that the term ‘substantially’ should be read as meaning ‘predominantly’ or ‘primarily, essentially or in the main’.[1] In addition to being ‘substantially reliant’ on an identified person, r.1.05A(1)(a)(ii) requires that the first person’s reliance on the other person be greater than any reliance on any other person or source of support
[1] Huang v MIMA [2007] FMCA 720 (Cameron FM, 16 May 2007) at [26]. See also Fusi v MIAC [2012] FMCA 1037 ( Nicholls FM, 15 November 2012).
The review applicant (sponsor), who was not represented, gave evidence that he had come to Australia for the first time in 2012. He is of Afghani (Hazara) background who settled in Quetta, Pakistan. He eventually received a temporary protection visa in Australia and his wife and [children] joined him in Australia in 2019.
The review applicant (sponsor) said that his sister-in-law, the secondary applicant, was deaf and did not have speech (which was interpreted as “mute”).
The review applicant (sponsor) gave evidence that his wife (the primary applicant) looked after the secondary applicant. It was a case of one sister caring for the other.
The secondary applicant communicates through an improvised sign language.
The family left Afghanistan 25 years ago for Pakistan (Quetta).
Data results from a clinic in Pakistan of the secondary applicant’s hearing tests were submitted. They show severe hearing impairment. The Tribunal gives regard to this recent evidence of December 2019.
The secondary applicant was cared for by her sister in the past and is cared for at present by another relation and the family through the primary applicant, pays for this. The primary applicant on occasion has travelled back to Pakistan to give care.
The Tribunal asked who was looking after the secondary applicant at the time of the visa application (June 2013). The review applicant (sponsor) said she was cared for by her sister (the primary applicant). The review applicant (sponsor) said he bore the cost. The Tribunal enquire whether he gave money to his wife to provide the care, to which he said that he did, sending funds electronically through an exchange service. There are receipts for this on file. The review applicant (sponsor) has done this regularly and continues to send money to this day he said.
Upon the Tribunal’s request, the review applicant (sponsor) sent more receipts post-hearing. He noted these as receipts of the transfer of money from the account of the primary applicant. However, the description has the name of the review applicant (sponsor) due to ‘license issues’ of the primary applicant. It was stated that the “red marks are the account number of the primary applicant. The numbers at the bottom of picture are transfer number of Pakistan and the money in Pakistani currency is also given in the picture”. The primary applicant gave her possession worth of “15,00000 rupees and 15,000 dollars” including gold jewellery to her sister to take care of secondary applicant. This information was delayed as the primary applicant forgot to mention it to the review applicant (sponsor) before the interview, the review applicant (sponsor) submitted.
Having examined these documents, I have no basis to doubt these transactions. I also having discussed the matter with the the review applicant (sponsor) have reason to conclude that as the male of the household he organised financial matters including those of his wife. Given that Afghanistan is a more traditional society this is the more likely scenario, along with the fact that the applicant has been in Australia the longest and is more familiar with organising such matters in this country. I accept his evidence here.
I also note that the primary applicant at the time of application did incidental paid work making dresses at home in Quetta. I accept that the primary applicant used this income to support primarily her sister, the secondary applicant. I also find that as a sister the primary applicant feels the greatest level of responsibility to support her blood relative over and above the review applicant (sponsor).
The Tribunal also contemplates the dynamic between husband and wife here, and finds that to consider the review applicant (sponsor) as the sole breadwinner (he is [an occupation] in Australia) and thus the one who is funding the secondary applicant would be an artificial way of looking at the concept of dependency. It rejects such an approach.
Questions to be resolved
Is the secondary applicant wholly or substantially financially reliant upon the primary applicant?
The Tribunal finds this to be the case. Her sister supports her. Her sister’s limited income at the time supported the secondary applicant in June 2013. Her share of the income and assets of her couple relationship is directed to her sister through the years, to the present, and her husband arranges this. Jewellery and other in-kind payments are also made.
I do not have concerns about the secondary applicant’s claimed lack of independence in life. I accept that she had severe deafness and does not have the power of speech, is single, has not been married or been in a de facto relationship, and is in her fifties. Given minimal job opportunities, deafness and singleness I conclude that she is reliant on others for financial support.
Who is the ‘family head’ in this case?
The relevant regulation is:
1.12 [Member of the family unit]

(1) a person is a member of the family unit of another person (in this sub regulation called the family head) the person is:
(a) a spouse of the family head; or
(b) a dependent child of the family head or of a spouse of the family head; or(c) a dependent child of a dependent child of the family head or of a spouse of the family head; or
(e) a relative of the family head or of a spouse of the family head who:
(i) has never married or is widowed, divorced or separated; and
(ii) is usually resident in the family head's household; and
(iii) is dependent on the family head.
The Tribunal finds that the family head in all reasonableness was effectively the primary applicant at the time of application and at present. While the husband may traditionally be viewed of as a family head in many contexts, he was overseas at that time, not in the home in Quetta.
The Procedural Advice Manual (PAMS3) provides:
“If support is provided by one of a couple

It is provided that if policy is provided by one of the cohabiting couple, the financial support may be attributed to the couple even though only one may be in receipt of income.

For example, if the family head or sponsor is the mother, but only her spouse has an income, the person may still be considered to be reliant on the mother if that is a requirement for grant of the visa.”
And further:
“As a general rule if the sponsor would not continue to support the secondary applicants in circumstances where the sponsor was no longer in a relationship with the family head then it should be considered that the secondary applicants are dependent upon the family head. However, if the sponsor would continue to support the secondary applicants regardless of the sponsor’s relationship with the family head, then it should be considered that the secondary applicants are dependent on the sponsor (and not the family head).’
The Tribunal is guided by PAMS and not bound to it. In this case it is reasonable that I consider the primary applicant to be one of the cohabiting couple, yet the financial support may be attributed to the couple even though only one may be in receipt of income. In fact the Tribunal goes further to say that provision of financial support is attributed to the primary applicant primarily as that is how she chooses to spend her notional portion of the family income – on her sister. She has also sent jewellery I find, on the evidence of the parties and also contributed her small income to her sister at the time of application when she was in Quetta.
Does the secondary applicant have a spouse or de facto partner?
There is no evidence that she does, and consistent evidence from all concerned that she does not. The Tribunal accepts the secondary applicant was a member of same household as the primary applicant. The Tribunal therefore finds r1.12(1)(e)(ii) is met.
On the basis of credible consistent oral and documentary evidence, the Tribunal accepts that the primary applicant has provided support to the secondary by payments for accommodation and food and necessities throughout including at the time of application in June 2013.
The Tribunal accepts that the secondary applicant was substantially reliant upon the primary applicant for her food, clothing and shelter between 2013 and the present.
The Tribunal considers this is a case in which it is evident that the secondary applicant was supported by the primary applicant at time of application and for a substantial period prior to that, that being her adult life. It is not a case of underlying support coming from someone else or from the secondary applicant herself. Instead the secondary applicant has been supported directly by the primary applicant for a substantial period prior to application.
The Tribunal finds had greater reliance upon the primary applicant than any other person or source of income at time of application and for a substantial period before that.
The Tribunal finds the secondary applicant was dependent upon the primary applicant at time of application. She therefore meets regulation 1.12(e)(i),(ii) and (iii) at time of application.
Time of decision criterion – cl.309.321
Since her arrival in Australia in 2019, the primary applicant has continued to provide support to the secondary applicant. The parties provided evidence of substantial money transfers to the secondary applicant in 2020, and in years prior. The primary applicant has sent money to the secondary applicant from her wider family income.
The Tribunal finds the secondary applicant was dependent upon the primary applicant at time of decision. She therefore meets regulation 1.12(e)(i), and (ii) at time of decision.
Although they have not physically lived in the same household since the primary applicant came to Australia in 2019, this is solely because the secondary applicant’s visa was refused. Were it not for the visa refusal, the Tribunal accepts that the secondary applicant and the primary applicant were usually resident as part of the same household. Funds from the primary applicant continue to be used for and sent to the secondary applicant. The Tribunal is satisfied that the current physical separation is a temporary arrangement. The Tribunal is satisfied that at time the primary applicant’s household is thus supported and therefore met r1.12(1)(e )(iii) is met.
The Tribunal accepts the secondary applicant is a member of the family unit of the primary applicant at time of decision.
The Tribunal is satisfied that the secondary applicant made a combined application with the primary applicant, who satisfied the primary criteria in Subdivision 309.21 and was granted a subclass 309 Partner (Provisional) visa.
Accordingly, the secondary applicant satisfies the requirements of cl.309.311 and cl. 309.221.
DECISION
The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the secondary visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.311 of Schedule 2 to the Regulations; and
·cl.309.321 of Schedule 2 to the Regulations
Justin Meyer
Member

ATTACHMENT - Extract from Migration Regulations 1994
Reg 1.05A    Dependent
1.05A    (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.
Reg 1.12    Member of the family unit
1.12    (1)    For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(a)    a spouse or de facto partner of the family head; or
(b)    a dependent child of the family head or of a spouse or de facto partner of the family head; or
(c)    a dependent child of 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.

[2020] AATA 5477

1 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice