Bahadori (Migration)

[2019] AATA 469

Bahadori (Migration) [2019] AATA 469 (4 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Abdol Hassan Bahadori

VISA APPLICANT:  Miss Kamela Bahadori

CASE NUMBER:  1816606

DIBP REFERENCE(S):  OSF2013/103078

MEMBER:Helena Claringbold

DATE:4 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 04 February 2019 at 8:02am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Spouse (Provisional)) – secondary applicant – member of the same family unit – ‘dependent’ – over 18 – miscommunication with Department – secondary applicant unmarried – inconsistent relationship evidence – credibility issues – fabricated information – no independent evidence of money transfers pre application – decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), rr 1.05A, 1.12 Schedule 2 cl 309.321, 309.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 23 August 2013, Miss Kamela Bahadori, the secondary visa applicant, applied for a Partner (Provisional) (Class UF) visa. The application was based on her relationship with her mother, Mrs Sughra Bahadori, the primary visa applicant. Mr Abdol Hassan Bahadori, is Mrs Bahadori’s spouse and is the sponsor and review applicant.

2. On 20 May 2018, a delegate of the Minister for Home Affairs refused to grant the secondary visa applicant’s visa. The refusal was based on the applicant not meeting cl.309.311 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). This is a review of the delegate’s decision.

3. On 21 November 2018, the sponsor appeared before the Tribunal to give evidence and present arguments. He provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Miss Bahadori and witnesses.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence in the Departmental of Home Affair’s (the Department’s) case file and the Tribunal’s case file and the oral evidence given at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether, at the time of application, the secondary visa applicant was a member of the family unit of her primary visa applicant mother. In particular, whether at that time, she was dependent on her mother or her mother’s spouse.”

   CLAIMS AND FINDINGS

7. Clause 309.311 of Schedule 2 to the Regulations requires that at the time of application, the secondary visa applicant is a ‘member of the family unit’ of a person who satisfies the primary criteria.

8. ‘Member of the Family Unit’ is defined in r.1.12 of the Regulations:

   (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.

9. ‘Dependent Child’ is defined in r.1.03 of the Regulations:

   Dependent child of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

   (a)  has not turned 18; or

   (b)  has turned 18 and:

   (i)  is dependent on that person; or

   (ii)  is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

10. ‘Dependent’ is defined in r.1.05A of the Regulations:

    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.

11. The Tribunal is satisfied that the secondary visa applicant, who was born in 1993, is the child of the primary visa applicant. At the time of the delegate’s decision the secondary visa applicant was 20 years old. At the time of this decision the secondary visa applicant is 25 years old. Therefore, the secondary visa applicant does not meet Regulation r.1.03(a).

12. There is no evidence before the Tribunal that the secondary visa applicant is incapacitated for work due to the total or partial loss of his bodily or mental function. Therefore, the secondary visa applicant does not meet Regulation 1.03(b)(ii)

    Is the visa applicant dependent?

13. When the primary visa applicant lodged this visa application on 28 July 2016, the secondary visa applicant was older than 18 years of age. She therefore needs to meet the definition of ‘member of the family unit’ and “dependent” according to Regulation r.1.12 and Regulation r.1.05A.

14. As such, the secondary visa applicant is required to demonstrate that for a substantial time before the time of application, she has been wholly or substantially reliant on her visa-holding parent or her spouse for financial support to meet her basic needs for food, clothing and shelter. In addition, the secondary visa applicant’s reliance on the primary visa applicant or her spouse for this financial support must be greater than her reliance on any other person or source of support to meet her basic needs for food, clothing and shelter.

15. The term ‘basic needs’ refers to lower order needs that a person must sustain and does not encompass luxuries and discretionary consumption of goods or higher order needs.  It also excludes payments for visa application charges or flights. The Tribunal considered case law, policy and the circumstances of this case and considers that a ‘substantial period’ is considered to be at least 12 months.

16. On 12 January 2017, the sponsor’s migration agent contacted the Department to report that: ‘We are also advised that the sponsor’s daughter the secondary visa applicant got married so she will be excluded from the application’. On 13 March 2017, the migration agent advised: ‘We were informed that the secondary visa applicant will be included in the application’. 

17. As detailed in the delegate’s decision record, during a telephone interview with the Department on 14 May 2017, the secondary visa applicant provided information as follows. She was previously in a relationship with a man (Mr Ali Hussaini).  She was introduced to him by friends but they never physically met.  She maintained contact with him through Viber and Facebook. She was unable to provide details of her previous partner or give a chronology of the events of the relationship. The relationship with Mr Hussaini lasted for a year and Mr Hussaini and the secondary visa applicant agreed to marry. The secondary visa applicant’s family disapproved of her relationship with Mr Hussaini and this led to it ending. The sponsor was angry because of the secondary visa applicant’s relationship and withdrew her from the visa application. When the relationship ended, he reinstated the secondary visa applicant’s visa application. She continued to live in the same household as the primary visa applicant. She attends English classes but was not involved in formal education and usually stays home undertaking household chores. At the time of the telephone interview, the primary visa applicant and the other secondary visa applicants were not at home. 

18. In July 2018 and at the Tribunal hearing the sponsor claimed that he went to his migration agent’s office with a person who acted as his interpreter (the interpreter). He claimed that unclear communication occurred between the interpreter, the migration agent and the Department. He stated that through the interpreter he told the migration agent that the secondary visa applicant planned to marry. However the advice provided to the Department was that the secondary visa applicant had married and this was incorrect. He stated that he during the secondary visa applicant’s relationship with Mr Hussaini he explained to the secondary visa applicant that her parents were worried that her relationship with Mr Hussaini may be dangerous. He claimed that following this conversation, the secondary visa applicant asked Mr Hussaini for information about himself and his family.  However he gave the secondary visa applicant inconsistent information and she realised her error and ended the relationship. The sponsor, primary visa applicant and the secondary visa applicant all stated that her relationship with Mr Hussaini ended and she did not marry him. They claim that she has always been under the guardianship of the sponsor and the primary visa applicant. Witnesses told the Tribunal that the secondary visa applicant is not married. They stated that the sponsor and primary visa applicant have been rotating their visits in Pakistan to be with the secondary visa applicant to ensure she remains safe. 

19. The Tribunal told the sponsor that a taskera dated 8 August 2016 recorded the secondary visa applicant’s occupation as ‘House Wife’. It provided the sponsor with additional time to provide information about the secondary visa applicant’s single status. In a post hearing submission the sponsor provided another translated copy of the taskera.  This recorded the secondary visa applicant’s occupation as ‘Home duties” and that her marital status as “single”.  Also provided is a translation of a notarised statement dated 5 December 2018 from Mr Kadim Ali Karimi, Imam, who claimed that the secondary visa applicant is ‘un-married till now”.

20. The Tribunal put information to the sponsor under the relevant provision.  The information is as follows: 

    ·The secondary visa applicant provided information to the Tribunal that she finished high school in 2015/2016. When the Tribunal brought to her attention that previous information given with the visa application is that she finished high school in 2012, she stated maybe it was 2012 or 2013 but she didn’t remember when she finished high school. She then provided information that, she finished Farci School in 2016 or 2017 where she attended four days a week but she couldn’t remember the subjects she studied. She stated that she was currently attending ‘the centre’ for learning English. This information was put to the sponsor as it was inconsistent and the sponsor also could not provide information about when the secondary visa applicant finished high school.

21. The sponsor did not respond.

22. The Tribunal is of the view that the secondary visa applicant is fabricating information.  She appeared unable to provide consistent information about her education or about the subjects she claimed to have studied and she changed the evidence she provided to the Tribunal.  A document claiming to be from the Ministry of Education Quetta, Pakistan dated 1 February 2012, informs the Tribunal that the secondary visa applicant was a student in year 11.  Additionally, the sponsor seemed unaware of the secondary visa applicant’s education. 

23. The Tribunal put information to the sponsor under the relevant provision.  The information is as follows:

    ·The secondary visa applicant was vague and unable to provide the Tribunal with an accurate account of her relationship with Mr Hussaini. She didn’t remember when the relationship began but said maybe it started in the middle of 2016. She said that six to seven months later she and Mr Hussaini decided to marry. She claimed that four to five months later the relationship ended because she found Mr Hussaini not to be trustworthy. She stated that the relationship lasted about a year or ten to eleven months. She did not have any Facebook or Viber records as she deleted them. This evidence was put to the sponsor as it was inconsistent with his evidence that the secondary visa applicant and Mr Hussaini’s relationship started in approximately January 2016 and he felt that it was in about August 2016, when they decided to get married at some time in the future. 

24. The sponsor responded and stated that on 12 January 2017, he attended his migration agent with a man who acted as interpreter and through the interpreter advised the migration agent that the secondary visa applicant’s plans had changed. That she had fallen in love and didn’t intend to come to Australia. He feels that there was communication with the Department and the primary visa applicant signed the form withdrawing the secondary visa applicant from the visa application. When the secondary visa applicant changed her mind (about her relationship) he notified the Department. He stated that on 13 March 2017, a further notification was sent to the Department for the secondary visa applicant to be included in the visa application. He stated that the secondary visa applicant told Departmental officers on 14 May 2017 that her relationship had ceased. The secondary visa applicant’s siblings in their statements also claim that the secondary visa applicant is not married and ‘has no intention to marry anyone shortly’.

25. The Tribunal is perplexed about the secondary visa applicant’s vagueness and inability to provide an accurate account of her relationship with the man she planned to marry. On the evidence she provided the Tribunal, her relationship with Mr Hussaini would have started either in June or July 2016. The secondary visa applicant and Mr Hussaini’s plans of marriage would have taken place in December 2016 or January 2017. Their relationship would have ended in between April and June 2017 which is after 13 March 2017, when the sponsor directed his migration agent to advise the Department to include the secondary visa applicant in the visa application.  

26. The Tribunal put information to the sponsor under the relevant provision. The secondary visa applicant provided the Tribunal with information as follows: 

    ·She is currently living in Berory (as spelt on visa application forms), Hazara Town, Quetta. She didn’t get the name of the building where she lives but it is either Block Number 2 or Block Number 4 and it is a one level house. She has lived at this address for two to three years and no one else other than her family lived in the house. She currently lives at this address with the primary visa applicant. Prior to living at this address, she grew up and lived for a long time at Gulli Mojiza, Berory, Quetta and it is a house with one floor containing two rooms. She lived here with the primary visa applicant and her siblings and they were the only tenants in the house. This evidence was put to the sponsor as it was inconsistent with his evidence that the secondary visa applicant currently lives at Block 1, Hazara Town, Quetta. It is a two storey unit and another family live on the top floor. Prior to living at this address the secondary visa applicant lived at Block 3, Hazara Town, Quetta for one, two, three or three to four years.  It is a house and another person rented two rooms and the review applicant rented two rooms.

27. The sponsor’s migration agent responded and provided the Tribunal with video recordings and made the following claims. One recording displays the same house ‘which was still being rented even when the family lived together in Pakistan’. The Tribunal accepts that the people in the recording appear to be the sponsor, the primary visa applicant and secondary visa applicant. They are depicted in an open planned kitchen/living room and they are talking and laughing together. The Tribunal cannot determine what is being said as the language used is not English.  It cannot determine the address of the premises or when the recording was made because there is no information in the recording about these matters.

28. The migration agent also claims that another recording shows that the ‘secondary visa applicant is living with the primary visa applicant at the registered address in Quetta’.  He goes onto claim that that the images show that the house continues to be rented by the primary visa applicant ‘because of the dependency of the secondary visa applicant as a young girl, unmarried girl’. The Tribunal accepts that the people in this recording appear to be the primary visa applicant and secondary visa applicant. It does not accept that it supports the claims made by the migration agent.  The recording depicts an open planned kitchen/living room, with what appears to be two rooms off one side of the kitchen/living room and one room off the other side of kitchen/living room and a set of stairs. The Tribunal cannot determine the address of the premises or when the recording was made because there is no information in the recording about these matters.

29. In addition the sponsor’s migration agent provided a notarised translated document titled ‘Tenancy Agreement’. The original untranslated document has not been provided and no identification documents have been provided for the person making the statement. The ‘Tenancy Agreement’ records that the primary visa applicant and sponsor were residing on the ground floor with their daughters Fatima, the secondary visa applicant and Mahjabin at ‘Block 2, Street Mujiza Hazara Town Brewery Road, Quetta’. It claims that the tenancy agreement has been in effect from 1 February 2012 to 30 December 2015. The date of when the agreement was made is recorded as ‘05-12-2’, the remainder of the date has been obliterated by a stamp. Another ‘Notarised Affidavit for Witness/Certificate’ is dated 5 December 2018. The original untranslated document has not been provided and no identification documents have been provided for the person making the statement. In this document Mr Gul Shah, claimed that the sponsor, primary visa applicant and their daughters were residing on the ground floor at ‘Block 2, Street Mujiza Hazara Town Brewery Road, Quetta’ and that now the primary visa applicant and secondary visa applicant lived there. Photographs have also been provided of the sponsor, primary visa applicant and secondary visa applicant and the migration agent stated ‘taken in the same registered house in Quetta’. There is no identification of the premises where the photographs were taken or when they were taken. The sponsor’s migration agent stated that Mr Shah’s statement clarifies the living arrangement of the applicants and that the primary visa applicant pays for all of the secondary visa applicant’s costs.

30. The Tribunal does not accept that the sponsor, primary visa applicant and the secondary visa applicant lived at these premises as they claimed. Neither does it accept that, Mr Shah’s statement supports the dependency of the secondary visa applicant on the primary visa applicant or her spouse. In June 2013, the sponsor, primary visa applicant and secondary visa applicant signed a form 47A.  In that form they declared the following: from 1993 to 2010 the secondary visa applicant lived in ‘Qarabagh, Ghazni, Afghanistan’. From 2010 to the date of the signed form, the secondary visa applicant lived at ‘Block 3, ‘Brory’ Hazara Town Quetta’. Also in June 2013, on form 80, the primary visa applicant declared that from November 2010 to the date of the form she lived at ‘Block 3, Hazara Town Berory Quetta’. At the time of application, the sponsor, primary visa applicant and secondary visa applicant declared that the information they provided on these forms, was correct and up to date in every detail. Conversely, the Tenancy Agreement provided by the sponsor post Tribunal hearing claims that from 1 February 2012 to 30 December 2015 the secondary visa applicant and her family lived at ‘Block 2, Street Mujiza Hazara Town Brewery Road, Quetta’. This information, when considered alongside the inconsistent information provided by the secondary visa applicant and the sponsor, as detailed above, led the Tribunal not to be satisfied that the applicants have not given the Tribunal false and misleading information about where the secondary visa applicant lived and whom she lived with. The information they provided about the secondary visa applicant’s residences, on the visa application form and on the form 80 is inconsistent with the information provided on the Tenancy Agreement and they could not provide consistent information to the Tribunal. In addition, the applicants have not provided the Tribunal with any Tenancy Agreement for the years 2010 to 2012.

1. Other information relates to money transfers sent by the sponsor to the primary visa applicant and one transaction made to ‘ali ahmad Ghulam ali’.  The sponsor and the primary visa applicant claim that the secondary visa applicant is dependent on them and that the money the sponsor sent to the primary visa applicant financially provided for the secondary visa applicant. This claim is supported by the secondary visa applicant’s siblings in their statements and by Mr Shah in his statement. Third party statements from friends of the applicants declare that the primary visa applicant and sponsor have three dependent daughters and that the primary visa applicant has travelled to Pakistan to care for the secondary visa applicant. The record of the money transactions provided to the Tribunal are dated 2017, which is after the relevant times. Other record for money transactions from the sponsor to Soghra Bahadori are recorded for 2014, 2015 and 2016.  While one transaction for November 2014 is directed to Mohammad Hussain. Even after considering the statements from witnesses, there is no independent evidence of money being sent from the sponsor to the primary visa applicant or the secondary visa applicant, for a substantial time immediately before and at the time of application in August 2013. 

   Other Considerations

2. At the Tribunal hearing, the sponsor made reference to his age and forgetfulness. The Tribunal asked about his medication and whether he had been diagnosed with any condition that would affect his poor memory; he responded that he had not. There is no evidence before the Tribunal that the sponsor was unable or unfit to provide evidence to the Tribunal. At the times the sponsor mentioned his memory, he was unable to respond to questions.  However throughout the remainder of the Tribunal hearing he was coherent. Medical information provided about the sponsor does not address any issues with memory loss. The Tribunal is of the view that the sponsor’s claims about his memory were to allay inconsistent information provided or his inability to answer the Tribunal’s questions.  The sponsor also drew to the Tribunal’s attention that it was 3am: in Pakistan when the secondary visa applicant received the call from the Tribunal. The Tribunal notes that when the secondary visa applicant answered the Tribunal’s telephone call she claimed she was sleepy. The Tribunal does not accept this argument as a reason for the secondary visa applicant being unable to provide details of her relationship with Mr Hussaini or her inability to provide cohesive evidence about where she lived or about her education or for the secondary visa applicant and the sponsor providing inconsistent evidence to the Tribunal. 

3. A letter from a consultant psychiatrist dated 8 December 2018, claimed that the secondary visa applicant is suffering from a social illness and needs rehabilitation ‘to be with family support’. The Tribunal accepts that the secondary visa applicant may be facing challenges; however, the psychiatrist has not provided any information about the support the secondary visa applicant’s family provided her for a substantial period immediately before and at the time of application. The Tribunal encourages the secondary visa applicant to take the advice of her health professionals to assist her recovery.

4. The Tribunal is not satisfied that the secondary visa applicant lived with the primary visa applicant and or the sponsor at or during the relevant times.  She and the sponsor provided inconsistent evidence about the secondary visa applicants’ living arrangements during the relevant times. In a post hearing submission a tenancy agreement recorded her as living at a different address to the one she provided at the time of application and to the Tribunal. The Tribunal is of the view that had the secondary visa applicant and primary visa applicant lived at the same address at the relevant times, the secondary visa applicant and the sponsor would be able to provide consistent evidence about her address and about the description of the accommodation and who lived in the accommodation. Most particularly, because the sponsor gave evidence that he travelled to be with his family for approximately three months every year since 2012. The Tribunal is also not satisfied that the secondary visa applicant currently lives with the primary visa applicant or the sponsor because she and the sponsor provided inconsistent information about the address of the accommodation, about the description of the property and about who lived at the property. Neither is the Tribunal satisfied that the secondary visa applicant was for a substantial period immediately before and at the time of application wholly or substantially reliant on the primary visa applicant or her spouse for food and clothing, because it does not accept that the secondary visa applicant lived with the primary visa applicant or the sponsor during the relevant times. The Tribunal accepts that witnesses claim that the secondary visa applicant was reliant on the primary visa applicant and the sponsor; however there is no independent evidence to support the secondary visa applicant’s reliance during the relevant time.

5. This decision record is a synopsis of the information before the Tribunal. The Tribunal considered the information individually and as a whole. Ultimately, the applicants have failed to satisfy the Tribunal that the secondary visa applicant was dependent on the primary visa applicant or the sponsor at the relevant times. The secondary visa applicant and the sponsor provided inconsistent information about where the secondary visa applicant lived during these times.  The secondary visa applicant was unable to provide details of her address at the time of application and post hearing information was not in agreement with the residential details provided for her at the time of application. The sponsor and the secondary visa applicant provided inconsistent information about the secondary visa applicant’s relationship with Mr Hussaini. The secondary visa applicant was vague and unable to articulate clear details about the relationship. She eventually gave a timeline indicating that the relationship ended after the sponsor had requested that she be reinstated in the visa application. The secondary visa applicant and the sponsor provided inconsistent information about the secondary visa applicant’s education. The secondary visa applicant provided one version of events, not in agreement with information provided as part of the visa application, when questioned by the Tribunal she changed her evidence to be more in agreement with the information provided previously. Collectively the inconsistent information, and notwithstanding documents provided including the translation of the secondary visa applicant’s taskera where it stated she is single and her occupation is home duties, led the Tribunal not to be satisfied about the secondary visa applicant’s and the sponsor’s credibility. It also led the Tribunal not to be satisfied that for a substantial time prior to and at the time of application that the secondary visa applicant was dependent on the primary visa applicant or the sponsor.

6. As the Tribunal is not satisfied that the secondary visa applicant lived with the primary visa applicant or the sponsor at or during the relevant times, it  does not accept that at the relevant times the secondary visa applicant was dependent on the primary visa applicant or the sponsor or that the secondary visa applicant is and had been for a substantial period immediately before that time, wholly or substantially reliant on the primary visa applicant or the sponsor for financial support to meet the secondary visa applicant’s basic needs for food, clothing and shelter; or that the secondary visa applicant’s reliance on the primary visa applicant or the sponsor was greater than any reliance by the secondary visa applicant on any other person, or source of support, for financial support to meet the first person’s basic needs.

7. The Tribunal therefore is not satisfied that the secondary visa applicant is a dependent child or member of the family unit of the primary visa applicant or her spouse. As a result the secondary visa applicant does not meet the requirements of cl. 309.311 and cl.309.321 of Schedule 2 to the Regulations.

8. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.

   DECISION

9. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

   Helena Claringbold
   Member