Akbari (Migration)

Akbari (Migration) [2024] AATA 2674 (14 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Qamber Ali Akbari
VISA APPLICANTS:  Ms Najeebah Akbari
Mr Lyaqat Ali Akbari
Ms Hafezah Akbari
Ms Saleemah Akbari
REPRESENTATIVE:  Mr Besmellah Rezaee
CASE NUMBER:  2308656
DIBP REFERENCE(S):  BCC2021/1249582
MEMBER:Stephen Conwell
DATE:14 June 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the application for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that all the visa (secondary) applicants meet the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.311 and cl.309.321 of Schedule 2 to the Regulations

Statement made on 14 June 2024 at 3:31pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – financial support – regular small money transfers, with one nine-month gap – claim of one large transfer – money exchange’s business name cancelled nine months before receipt issued – evidence of regular, small transfers accepted – members of family unit – applicants living illegally in third country at time of application – country information – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CA, 65, 359AA
Migration Regulations 1994 (Cth), rr 1.03, 1.05A(1)(a)(i), (ii), 1.12(1)(e), Schedule 2, cls 309.311, 309.321
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 Home Affairs on 18 April 2023 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visa on 8 December 2013 as members of the family unit (children) of the primary visa applicant Ms Shireen SHEFAI and the review applicant, Mr Qamber Ali Akbari (the sponsor). 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 submission is that the four visa applicants (the applicants or the secondary applicants) are all dependents of Ms Shefai (the primary visa applicant) and therefore members of the same family unit. Ms Shefai has since been granted for a 309/100 visa in 2016 and has relocated to Australia.
The sponsor was represented in relation to the review by a legal practitioner (representative).
The sponsor provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.
The sponsor applied to the Tribunal for a priority hearing on medical grounds, which was granted on 15 March 2024.
The sponsor appeared before the Tribunal on 16 May 2024 to give evidence and present arguments. The Tribunal also received oral testimony from the primary visa applicant, Ms Shireen SHEFAI now resident in Australia and from the secondary applicants who continue to reside in Quetta, Pakistan and who appeared by video-link.
The hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The sponsor, his wife (the primary visa applicant) and another son now reside in Australia.
The delegate was satisfied that all four applicants are the children of the primary visa applicant and sponsor, within the meaning of section 5CA.
According to the decision record, the sponsor has previously submitted evidence of financial support from 5 October 2016 to 12 September 2020, which was accepted by the delegate as a history of financial transfers to the applicants.
In the last 12 months preceding the delegate’s decision dated 18 April 2023, the evidence showed that sponsor has submitted they have transferred a total of AUD 7,430 to their son, Lyaqat Ali AKBARI (the eldest child amongst the applicants). These funds were transferred from 2 August 2022 to 28 October 2022.
Importantly, the delegate found no evidence of any financial support sent by the sponsor to the applicants for a nine-month period, from November 2021 to July 2022.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the secondary visa applicants claiming to be members of the family unit of the primary applicant, satisfy the secondary criteria under cl.309.311 at the time of application for the grant of the visas.
The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided previously to the Department, including the representative’s written submission of 6 May 2024 and statutory declarations and other evidence provided prior to, and following, the hearing.
The Tribunal acknowledges the medical report from the sponsor’s treating psychologist dated 8 March 2024 which records that “…he presents with symptoms of Post traumatic Stress Disorder, Major Depressive Disorder and bereavement, characterized by marked features of psychosis (auditory hallucinations) and suicidal ideations. Other accompanied symptoms such as mental disorganisation and memory lapses may be indicative of Schizophrenia...”
Are the secondary criteria requirements for the secondary applicants met?
Member of the family unit - requirements of cl. 309.311 (time of application)
The Regulations defines ‘a member of the family unit’ under regulation 1.12(1):
1.12  (1)  For the definition of member of the family unitin 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
[(d) omitted by SR 2004, 390 with effect from 02/04/2005 - LEGEND note]
(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.
The critical criterion in relation to the secondary applicants is set out in cl. 309.311, which requires that the visa applicants are a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in subdivision 309.32.
The delegate did not expressly address the ‘time of application’ criteria; however, the Tribunal is satisfied that at the time of visa application, on 8 December 2013, the eldest applicant, Mr Lyaqat Ali Akbari, was aged 17 years and his three younger siblings were aged, respectively, 16, 15 and 14 years.
The Tribunal is further satisfied, on the evidence before it, that the applicants were not engaged to be married, or had a partner or spouse at the time of application. The Tribunal finds that the applicants are the biological children of the sponsor and the primary visa applicant. Therefore, the Tribunal is satisfied that the applicants were the dependent children of the primary visa applicant within the meaning of r.103 at the time of application. The Tribunal is satisfied that the applicants were all members of the family unit of the primary visa applicant at the time of application.
For the above reasons, the Tribunal is satisfied that the applicants are all members of the family unit and all made a combined application with the primary visa applicant, (their mother), who is the person who satisfies the primary criteria in subdivision 309.32. Therefore, the applicants met the requirements of cl. 309.311 at the time of application, being 8 December 2013, now more than 10 years ago.
359AA procedure
Utilising the s.359AA procedure in the hearing the Tribunal put information to the sponsor regarding his claim to have transferred AUD 65,909 to the applicants via a Mr Charman Ali in July 2019. The Tribunal noted that the receipt from Kabul Money Exchange, Merrylands NSW, provided by the sponsor was dated 27 April 2023. It stated,
----------------
27-APR-2023  REF-3278
To Whom It May Concern
This Letter is to advise you tha (sic) Qamber Ali Akbari
        Transferring money Through (sic) by the Name of
        Chaman Ali Quetta Pakistan
14 July 2019
The total amonunt (sic) transferred is AUS $ -66509,00
If you have any questions or queries please don’t hesitate to contact xxx 777
Yours Sincerely
(signature dated 27 April 2023)
----------------
The Tribunal informed the sponsor that it wished to put to him certain information that it would consider being the reason or part of the reason for affirming the decision. The Tribunal provided the applicant with a copy of business name information for Kabul Money Exchange obtained from the Australian Securities and Investments Commission (ASIC). The Tribunal told the sponsor that this information showed that the business name had been cancelled on 23 September 2022, some nine months before the date the claimed receipt was signed and issued. Furthermore, the Tribunal informed the sponsor that Tribunal staff had made several unsuccessful attempts to contact the business on the mobile phone number on the receipt.
As the sponsor did not appear to understand the Tribunal’s line of questions, the Tribunal agreed to grant a 28 day extension of time post-hearing for the representative to confer with his client and submit further submissions.
The representative provided a post-hearing submission within the time granted. The submission states,
We note that in considering the records it had before it, the Department failed to take into account a receipt for a transaction made by Mr Qamber Ali to Chaman Ali in the amount of 66,909 AUD on 14 July 2019 which was intended for his children and because of the quantum of the amount, it was sent to Mr Chaman Ali who has legal status in Pakistan to receive and hand over to the Akbari children. The statement confirming this remittance is before the Tribunal. We have attached corroborating evidence of this money remittance by way of bank statements showing transactions/withdrawals of $25000 x 2 on 12 July 2019, $9000 and $7569 on 14 July 2019. We are told that these money were withdrawn/debited to be deposited to Kabul Money Exchange’s account at once. The amount withdrawn totals the amount that was deposited to Kabul Money Exchange and the date of 14 July 2019 further corroborates the date of the money transfer to his children.
A large amount of this money was saved, and the family used of this saving in the years 2020, 2021, 2022, and 2023 in which Mr Akbari continued to remit money to his wife and children.
The Tribunal is not satisfied by this post-hearing response on this issue for a number of reasons. Firstly, the evidence does not indicate that the withdrawn monies were deposited to Kabul Money Exchange (KME). The receipts supposedly from KME are not time-of-transaction receipts but were purportedly issued on 27 April 2023, which as noted above is some eight months after the business name had been cancelled on 23 September 2022. Furthermore, the KME receipts claim to record that (a) AUD 65,909 was transferred on 14 July 2019. A second KME receipt claims that a total of AUD 1,980 was transferred on two subsequent occasions, 9 December 2019 and 12 September 2020. This totals AUD 67,889. Yet the sponsor claims (as noted in the post-hearing submission) to have transferred AUD 66,900 through KME in 2019. If the Tribunal ignores the 12 September 2020 transfer claim, there is a discrepancy between AUD 65,909 and the later claim of AUD 66,900 which is unexplained and unaccounted for.
The Tribunal also had difficulty accepting that the sponsor (given his limited finances) sent such large sums in two or three transactions which, when converted to Pakistani rupees, would represent even greater wealth, arguably keeping the applicants financially supported well into the present day, assuming their modest living standards. This begs the question why the sponsor continued to send regular remittances of approximately AUD 900 to the applicants from 2020 to the present day.
In the absence of any corroborating credible evidence from Mr Chaman Ali or from a representative of KME, the Tribunal doubts the genuineness of the KME ‘receipts’, finding it to be more likely a fabrication to explain the 9 month gap from November 2021 to July 2022 identified by the delegate in which no financial support was provided by the sponsor.
Requirements of cl. 309.321 (time of decision)
The requirements of cl.309.321 are that the visa applicants (a) continue to be a member of a family unit of a person who, having satisfied the primary criteria, is the holder of a subclass (Partner provisional) visa.
As noted in the decision record, the delegate was satisfied that all four applicants are children of the primary visa applicant and sponsor, within the meaning of section 5CA. Based on the evidence, the Tribunal also accepts that all four applicants are the biological children of the primary visa applicant and sponsor, as claimed.
The remaining issue in regard of the applicants is whether each continues to meet cl.309.321 by continuing to be a member of a family unit of a person who, having satisfied the primary criteria, is the holder of a subclass (Partner provisional) visa. At the time of the delegate’s decision, the delegate was not satisfied that each applicant did continue to meet cl.309.321. However, the Tribunal must consider the issue afresh at the time of its decision.
Clause 309.321 is a time-of-decision secondary criterion as set out below:
The applicant:
(a) continues to be a member of the family unit of a person who, having satisfied the primary          criteria, is the holder of a Subclass 309 (Partner (Provisional)) visa (the person who    satisfies the primary criteria); or
(b) is a person to whom each of the following applies:
(i)    the person made a combined application with the person who satisfies the primary criteria;
(ii) subsequent to the combined application being made, the person was found by the Minister not to be a member of the family unit of the person who satisfies the primary         criteria;
(iii) subsequent to the person who satisfies the primary criteria being granted a Subclass        309 (Partner (Provisional)) visa and Subclass 100 (Partner) visa - the Migration      Review Tribunal found the person to be a member of the family unit of the person who        satisfies the primary criteria.
With regards to regulation 1.12(1)(e)(iii), the Tribunal has relevantly considered regulation 1.05A(1) which provides the definition of ‘dependent’. It states:
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.
It is not in doubt that if the sponsor’s wife (the applicants’ mother) is the family head, then the sponsor is the spouse of the family head, consistent with reg. 1.12 (1)(b). There is no suggestion the applicants are wholly or substantially reliant on the sponsor for financial support because any of them are incapacitated for work due to total or partial loss of their bodily or mental functions, pursuant to r.105A(1)(b).
The primary visa applicant and sponsor submit that the applicants are reliant on them for financial support and subsistence above all others. In his statutory declaration dated 19 November 2021, the sponsor states,
My wife and children live illegally in Pakistan and face various issues. My children cannot go out freely or gain higher education because of their illegal status in Pakistan. My children are not allowed to work in Pakistan, and when they step out, they fear getting caught by the police and asking for a visa which they do not have. Pakistani police do not treat Afghan refugees right; they abuse them physically and verbally and let them go after getting a bribe.
I have three daughters who are neither engaged nor promised to anyone for marriage. In our culture, girls depend on their parents until they are married and rely on their husbands after marriage. My sons are unemployed and wholly and substantially depend on my wife and me.
Country information pertaining to Afghanistan and Pakistan support these statements. The Department of Home Affairs Common Claims - Pakistan report states, under the section on Refugee Convention[1], as follows:
[1] Country of Origin Information Services Section (COISS), effective from 16 November 2023
Hazaras
The Pakistan government is currently expelling Afghans without identity documents. Many of the Afghans are from the Hazara ethnic group.[2] The UN and several global human rights groups including Amnesty International have highlighted the Hazara community will be at risk returning to Afghanistan.
[2] 'Afghan Refugees in Pakistan Under Pressure as Deadline Passes for Undocumented Migrants To Leave', Arshad Mehmood, Media Line, The (TML), 02 November 2023, 20231103090028
According to a recent Country Information Report on Pakistan issued by the Department of Foreign Affairs and Trade (DFAT)[3]
3.6 The Hazara community in Quetta lives in two enclaves: Hazara town and Mariabad. The             Pakistani government provides security in these communities, including vehicle       checkpoints and searches on entry and exit. …
3.7 Medical, education and other services inside the enclaves are basic. Food and other      essentials must be brought in from outside, and prices are reportedly double those      elsewhere in Quetta. Those who can afford to travel to Karachi for medical treatment do so,      while others must attend Quetta hospitals outside the enclaves, where they have been attacked in the past. Sectarian militants have also attacked Hazara religious processions,      places of worship, and pilgrims on their way to Iran.
3.8 Schools exist within the enclaves, but there is little opportunity for higher education. Many          Hazara students have abandoned the hope of higher education due to the risk of travelling.          …
3.9 Many Hazaras in Quetta provide services to their own communities within the enclaves; others move to other cities across Pakistan to work. Whether a Hazara can relocate    strongly depends on their personal resources and family connections. In the past Hazaras      were often employed in the military and public service, but few now apply for these jobs due to discrimination and fear of attacks. Since the IS attack in Mach in January 2021, Hazaras are reportedly too scared to work in the Baloch mining industry, previously an important source of income. High rates of unemployment and limited prospects have reportedly led to a sense of hopelessness among Hazara youth in Quetta.
[3] DFAT Country Information Report – PAKISTAN - January 2022

On the basis of credible consistent oral testimony and documentary evidence, including copies of his remittance history with Sarafi Qasemi IMT, the Tribunal accepts that the sponsor has provided regular and ongoing financial support to the applicants by payments for accommodation, food and other basic needs for a substantial period of time, recorded as being from 1 February 2021 to 25 March 2024. This period includes the immediate 12 months preceding the Tribunal’s decision. The applicants appear never to have been wholly or substantially independent through remunerative employment, eligible pensions or stipends from Afghanistan or Pakistan or any other source of income other than their parents. The Tribunal is satisfied that this substantial dependence on the sponsor continues to the present day.
The Tribunal accepts that the applicants had, and continue to have, greater reliance upon the sponsor for their basic needs than any other person or source of income at time of application and for the period leading up to making this decision.
In this regard, the applicants meet regulations 1.05A(1)(a)(i)(and(ii) and1.12(1)(e)(iii), at the time of application and at the time of decision. Taking all these aspects into account, the Tribunal accordingly finds the applicants to each be a relative of a spouse or de facto partner of the family head at the time of application as well as the time of decision.
Based on the findings above, the Tribunal finds that each of the applicants is a dependent relative of the family head, namely, the primary visa applicant at time of application and each therefore meets regulation 1.12(1)(e)(i),(ii) and (iii) at time of application.
The Tribunal is satisfied that the applicants made a combined application with the primary visa applicant, who satisfied the primary criteria in Subdivision 309.21 and was granted a subclass 309 Partner (Provisional) visa, as required by cl.309.311.
Consequently, the Tribunal accepts that each of the applicants continues to be a member of the family unit of the primary visa applicant at time of decision.
Accordingly, the applicants each satisfy the requirements of cl.309.311 and cl.309.221.
Given the findings above, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for a Subclass 309 visa in respect of the secondary visa applicants.
DECISION
The Tribunal remits the application for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that all the visa (secondary) applicants meet 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.
Stephen Conwell
Member

[2024] AATA 2674

14 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Remedies

Statutory Construction