Asif (Migration) - [2024] AATA 1431

Asif (Migration) [2024] AATA 1431 (21 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Hadi Asif
VISA APPLICANTS:  Ms Zubaida Shah Bakul
Ms Fatima Ghulam Ali
Ms Hameeda Ghulam Ali
CASE NUMBER:  2003931
HOME AFFAIRS REFERENCE(S):          OSF2013/09424
MEMBER:Tegen Downes
DATE:21 May 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Partner (Provisional) (Class UF) visas.

Statement made on 21 May 2024 at 12:32pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – secondary visa applicants – members of the family unit – sponsor’s mother and sisters – wholly or substantially reliant – primary applicant financially supported the visa applicants in Iran at an earlier time – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl 309.311; rr 1.03, 1.05, 1.12
CASES
Al Naqi v MIMA [2007] FMCA 874
Alimi v MIAC [2007] FMCA 1520
Huynh v MIMA [2006] FCAFC 122
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 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under section 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visa on 30 June 2013. The delegate refused to grant the visas on 5 January 2020 on the basis that the visa applicants did not satisfy the requirements of cl 309.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the visa applicants were not ‘members of the family unit’ of the primary applicant, within the meaning of the Act.
The sponsor appeared before the Tribunal on 21 May 2024 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
ISSUE AND LAW
The issue in this review is whether, at the time of application, the visa applicants were ‘members of the family unit’ of the primary applicant, for the purposes of cl 309.311 of Schedule 2 to the Regulations.
The definition of ‘member of the family unit’, for the purposes of the Act and Regulations, is set out in reg 1.12(1), which provides that a person is a member of the family unit of another person (the family head) if the person is:
a.the spouse or de facto partner of the family head;
b.a dependent child of the family head or of their spouse or de facto partner;
c.a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild); or
d.a relative of the family head or their spouse or de facto partner who:
i.does not have a partner;
ii.is usually resident in the family head’s household; and
iii.is dependent on the family head.
Relative is defined in reg 1.03 to include a parent, child, sibling, grandparent, grandchild, aunt, uncle, niece, nephew or step-equivalent.
Regulation 1.05A provides that a person is dependent on another if they are:
·‘wholly or substantially’ reliant on the other person for financial support at the relevant time and for a substantial period immediately before that time, and the financial support being provided is to meet the applicant’s basic needs for food, clothing and shelter, and their reliance on the other person is greater than their reliance on any other person or source of support; or
·‘wholly or substantially’ reliant on the other person for financial support because they are incapacitated for work due to the total or partial loss of their bodily or mental functions.
In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is reliant for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].
At the time of application, PAM3 relevantly provided that:
In order to meet the definition of MoFU under regulation 1.12(1)(e), relatives of the family head (or relatives of the spouse or de facto partner of the family head) must satisfy the regulation 1.05A definition of dependent. This is prescribed under regulation 1.12(1)(e)(iii).
However, depending on the circumstances of the case, it may not be sufficient for a person under regulation 1.12(1)(e) to be dependent on the partner of the family head. This is the case law effect of Al Naqi v Minister for Immigration & Anor [2007] FMCA 874 and Alimi v the Minister for Immigration & Anor [2007] FMCA 1520.
Following these decisions, if the source of financial support is the partner of the family head (and not the family head), officers should take into account the context of this support is assessing whether or not the person is dependent on the family head.
For example, if:
·the sponsor is providing money to the family head and
·the family head is using some of that money to support relatives of either the family head or the sponsor (if the sponsor is the family head’s spouse),
officers need to look closely at the underlying source of support and reasons for the provision of that support in order to establish who any secondary visa applicants are dependent on.
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 on the family head (and not the sponsor).
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).
In Al Naqi v MIAC [2007] FMCA 874, a matter that concerned a decision to refuse the sponsor’s mother and brothers’ visa applications (when the sponsor’s wife, the primary applicant, was granted a visa), the Court relevantly stated that:
14.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.
15.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.
16.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.
17.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, in Alimi v MIAC [2007] FMCA 1520, which concerned the refusal of the sponsor’s brother’s visa application, the court relevantly stated:
19. As to Al Naqi, it appears to me that the overall result was correct. The applicant took exception to the passage cited above from paragraph 14 of that decision. However, it seems to me that the applicant may have misconstrued that passage. His Honour was simply saying, as I understand it, that it may sometimes be helpful, in ascertaining the precise source of support, to ascertain the reasons for the provision of that support. His Honour was not saying that it is always necessary to identify the reasons for support being given, much less that there need to be good reasons for that support. The ratio of Al Naqi appears to me to be that, at least in relation to secondary applicants for a partner visa, where the ultimate source of support is a particular person, the secondary applicant is not the dependent of that person’s spouse. As my decision in this case is consistent with the ratio of Al Naqi, it is unnecessary for me to dwell further on this point.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The sponsor was born in Pakistan. He came to Australia in 2011 and was granted a Protection Visa.
The primary applicant is the sponsor’s wife and cousin. She was born in Pakistan and came to Australia in 2020 following the grant of her Partner visa.
The visa applicants are the sponsor’s mother and two sisters (and also the primary applicant’s aunt and cousins).
The sponsor gave evidence at the hearing to the following effect:
a.The sponsor and the primary applicant married in January 2013. Following their marriage, they lived in Iran together with the visa applicants. The primary applicant and the visa applicants continued to live together in Iran for approximately one year, while the sponsor returned to Australia after approximately three months.
b.Before their marriage, the primary applicant and the visa applicants lived in Pakistan in the same neighbourhood, but not in the same household. The primary applicant worked in a beauty parlour and also worked privately as a tailor. She financially supported the visa applicants by giving them cash. The sponsor did not provide financial support to them because he was in detention in Australia until in or about May 2012.
c.The primary applicant moved back to Pakistan in 2014 to work. The visa applicants remained in Iran. The primary applicant visited the visa applicants approximately seven times with the sponsor. After the primary applicant started work, she resumed providing financial support to the visa applicants by transferring money to them through an agency. This continued until late 2019, when the primary applicant stopped work pending her move to Australia
d.Since late 2019, the sponsor has resumed the role of financially supporting the visa applicants. The primary applicant has not worked since late 2019.
The primary applicant did not give evidence at the hearing because she was in Pakistan, and the sponsor did not nominate her as a witness so that the Tribunal could facilitate her giving evidence by Microsoft Teams.
Are the visa applicants’ members of the family unit of the primary applicant?
Based on the evidence set out above, I find that, at the time of application, the visa applicants were not dependent on the primary applicant.
On the sponsor’s own evidence, the visa applicants had been financially dependent on him for approximately six months at the time of application. While they may have previously been financially dependent on the primary applicant (although there is no evidence to corroborate the sponsor’s claims of such), they were not reliant on primary applicant for financial support at the relevant time, being the time of application, and for a substantial period immediately before that time.
I find that the sponsor provided financial support to the visa applicants because the visa applicants are his family, and not because of his relationship with the primary applicant.
Accordingly, at the time of application, the visa applicants were not members of the family unit of the primary applicant and cl 309.311 of Schedule 2 to the Regulations was not met.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF).
Tegen Downes
Member
1.12     Member of the family unit
(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
(d)     (Omitted 02/04/2005)
(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.
…
1.05A Dependent
(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.
(2) …