Al Naqi v MIAC - [2007] FMCA 874

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AL NAQI v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 874

MIGRATION – Secondary visa applicant – whether dependants – mother and brother of primary applicant’s spouse – meaning of dependency in context of relatives of spouse.

Migration Regulations 1994, regs 1.12, 1.05A

Drake v The Minister for Immigration and Ethnic Affairs No. 2 [1979] 2 ALD 634
El Ess v The Minster for Immigration and Multicultural & Indigenous Affairs [2004] FCA 1038
Soegianto v The Minister for Immigration and Multicultural Affairs [2001] FCA 1612
The Minister for Immigration and Multicultural affairs v Graovac [1999] FCA 1690
Zeng v The Minister forImmigration and Multicultural Affairs [2005] FMCA 546
XIE v The Minister for Immigration and Multicultural Affairs [2000] FCA 230

Applicant:

KHADIM HUSSEIN AL NAQI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG1186 of 2006

Judgment of:

Riethmuller FM

Hearing date:

18 December 2006

Date of last submission:

18 December 2006

Delivered at:

Melbourne

Delivered on:

5 June 2007

REPRESENTATION

Counsel for the Applicant:

Mr Gibson

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondent:

Ms Moore

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

That the application be dismissed.
The applicant to pay the respondent’s costs fixed at $6000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG1186 of 06

AL NAQI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks to judicially review a decision of the Migration Review Tribunal, of 10 August 2006. The decision concerns an application for a subclass 309 Family Unit Visa.
The applicant before this Court is the husband of the primary visa applicant, son of one of the secondary visa applicants and brother of the other two secondary visa applicants. A visa was granted to the applicant's wife but not to his mother or brothers.
The applicant arrived in Australia on 15 May 2000. He travelled to Pakistan on 28 November 2004 and remained there until 12 February 2005. Whilst in Pakistan he married the primary visa applicant on 13 December 2004. The applicant's wife arrived in Australia, following her application for a spouse visa, on 18 February 2006. The applicant's mother and brothers (who are secondary visa applicants on the basis that they were dependents of the applicant's wife) therefore sought visas consequential upon her receiving a spouse visa. The applicant's brothers were born in 1990 and 1991.
There does not appear to be any doubt that the applicant's wife lived with his mother and brothers until such time as she came to Australia. He sent money regularly to pay for rent, utilities and other household expenses, which she administered. She also assisted in running the household.
Once the applicant's wife came to Australia he sent money directly to his mother and the wife was no longer involved in the distribution of funds.
The requirements of visa conditions 309.311 and 309.321 include a requirement that the mother and brothers be members of the family unit of the wife. Regulation 1.12 relevantly defines the term ‘family unit’ in the following terms:
1.12 [Member of the family unit]
(1)   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 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 question of dependency is determined in accordance with reg.1.05A which provides:
1.05A    [Dependent] (1)    … 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.
In addition the visa criteria require that the applicant's wife be usually resident in the dependent family's household. There is no question that she was usually resident in that household at the time of the visa application. By the time of the MRT hearing she was residing in Australia and not in the household of the other applicant’s.
It was therefore necessary for the MRT to consider whether or not the applicant's mother and brother were dependent upon the applicant's wife and whether they were ordinarily resident with his wife.
The Tribunal’s findings are set out at paragraphs [32-35] of their decision where the member says:
[32] The Tribunal was satisfied that the secondary visa applicants were, at the time of application, and had been for a substantial period before the date of application (the 3.5 months), wholly or substantially reliant on the primary applicant to meet their basic needs, because she administered the money, although the primary applicant obtained her money from the review applicant. The Tribunal also needs to be satisfied that the secondary visa applicants were “usually resident” in the primary visa applicant’s household (1.12(1)(e)(ii). The Tribunal finds that in fact the primary visa applicant on her marriage went to live with the secondary visa applicant’s house and she became usually resident in the secondary visa household. The Tribunal accepts that on the primary visa applicant’s marriage to the review applicant this became her household and the secondary visa applicants were usually resident in the primary visa applicant’s household, and therefore at the time of application the secondary applicants satisfy cl.309.311.
[33] The Tribunal however, also needs to consider the time of decision criteria.
[34] At the time of decision the primary visa applicant is in Australia with the review applicant. The primary visa applicant arrived in Australia in February 2006. The primary visa applicant has no financial resources of her own or employment to contribute to the funds sent to the secondary applicants overseas. The primary visa applicant no longer has any involvement in the receipt of distribution of those funds to the secondary visa applicants. The secondary visa applicants, as such, are wholly and substantially reliant on the review applicant for financial support since the primary visa applicant arrived in Australia in February 2006 and not the primary visa applicant for income to maintain their cost of living, including food, clothing and shelter. The secondary visa applicants’ reliance on the review applicant is greater than any reliance the secondary visa applicants have on the primary visa applicant. The requirements of r.1.05A are therefore not met. The secondary visa applicant’s do not satisfy cl.309.321.
[35] Accordingly, the Tribunal finds that the secondary visa applicants do not meet the definition of dependent in Regulation 1.05A. Consequently, they are not a member of Zahra al Naqi’s family unit, as required by Regulation 1.12 and they do not satisfy the criteria in subclause 309.321.

Meaning of dependency

In this case the applicant argues that dependency is established by financial support. He argues that the money provided by him should be treated equally as money provided by his wife. The argument is based on a Procedural Advice Manual passage that appears in PAM3 provided by the Department to officers of the Department and MRT. The relevant passage appears at para.7.4 which 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.
It is not a judicially reviewable error for the Tribunal to have failed to refer to the PAM3 passage relied upon by the applicant. The PAM is not binding. The failure to consider policy is not an error of itself, but may indicate some other form of error: See Re Drake v The Minister for Immigration & Ethnic Affairs No. 2 [1979] 2 ALD 634 at 645; Lsel Ess v The Minster for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1038, per Gray J at [45]; XIE v The Minister for Immigration & Multicultural Affairs [2000] FCA 230 at [28-29]; Soegianto v The Minister for Immigration & Multicultural Affairs [2001] FCA 1612 at [15-[16]. It is therefore appropriate to carefully consider the Tribunals reasons.
In determining the meaning of the word ‘dependent’ in reg.1.05A it is not necessary that the person providing support be the only source of support that the person receives. Rather, a broad practical judgment is required in the circumstances of the particular case as to what is encompassed by the notions of dependence and support: see The Minister for Immigration and Multicultural Affairs v Graovac [1999] FCA 1690. These issues are discussed at some length, and the areas in which one would normally make factual findings to determine dependency are identified, in Zeng v The Minister [2005] FMCA 546, which the Tribunal applied in this case. However, these authorities do not deal with a case where the support is being provided by a spouse.
In order to make a determination on a ‘broad practical basis’ about who is providing support it will sometimes be necessary to identify the underlying source of the support and reasons for the provision of that support. For example, it could not be suggested that the applicant’s mother is ‘dependent’ (in the sense used in the regulations) on the financial institution in Pakistan, which provides her with the cash money equivalent to the transfers the applicant makes from Australia. The financial institution only facilitates the transfer of funds. This is because the underlying source of the funds is the applicant, and the underlying motivation for payment is the applicant’s familial relationship.
In many cases involving a husband and wife, which would be the subject of the PAM, the dependents would be receiving the support because of the relationship of the supporter with their spouse, who may be providing the funds.
The Court and the Tribunal would generally avoid the distasteful process of expressly determining whether or not a person's spouse would be likely to support their dependents if they were not in a spousal relationship. However, on a broad and practical level financial support for a person’s relatives, from their spouse, can be considered support by them if their spousal relationship is an essential or substantial part of the reason that the support is provided. This appears to me to be the circumstance to which PAM3 is directed.
In this case, however, there is no real doubt that the applicant would continue to support his mother and brothers regardless of the nature of his relationship with his wife, and indeed, even if he, his mother or brothers had no relationship with his wife. In these circumstances it is difficult to see how it can properly be said that the applicant's mother and brothers are dependent upon his wife. The applicant is the ultimate source of the funds, and the reason for the support is not based upon any relationship of the applicant or the claimed dependants with his wife, nor any reliance upon the wife.
Similarly, had the applicant's wife been living in separate accommodation from his mother and brothers, then the fact that he provided money first to his wife who then passed it on to his mother and brothers would not be likely to be any different, in substance, to the applicant sending money through a financial institution.
In the actual facts of this case the applicant's wife was formerly residing in the household of his mother and brothers. Whether or not in these circumstances, in the complex factual matrix of this case, the mother and brother would be considered dependent upon her or the applicant was a question of fact for the Tribunal to determine. This aspect of the case the Tribunal determined in favour of the applicant. Counsel for the Minister argues that this part of the decision was overly generous to the applicant. There is little upon which a finding of dependency during this period could be based.
At the time of the MRT hearing, the applicant’s mother and brothers were no longer living with his wife, she was not the direct or indirect source of funds, nor was her relationship with any of the applicant’s family part of the reasons for the applicant’s support of his mother and brothers, nor did she enable the support to be provided.
It was therefore necessary for the MRT to consider whether the dependency it did find was for a substantial period immediately before the relevant time (the application). In paragraph 32 the Tribunal found that the applicant’s mother and brothers had been dependent on the applicant for a substantial period before the application. The clear tenor of this finding is that they were not dependent on the wife for a substantial period prior to the decision. This was a finding of fact open to the Tribunal.
In the circumstances I therefore find no error of law in the decision of the tribunal. Indeed, it appears to me that the application cannot succeed as the mother and brothers were not dependent upon the applicant’s wife. As a result the application must inevitably fail.
I therefore dismiss the current application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Deputy Associate: Averil Tan

Date: