Dolatkhahnejad (Migration)

[2018] AATA 324

Dolatkhahnejad (Migration) [2018] AATA 324 (19 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Majid Dolatkhahnejad

VISA APPLICANT:  Mr Salar Dolatkhahnejad

CASE NUMBER:  1717096

DIBP REFERENCE(S):  OSF2013096740

MEMBER:Margie Bourke

DATE:19 February 2018

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.

Statement made on 19 February 2018 at 1:49pm

CATCHWORDS

Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – Combined application – Membership of the same family unit – Biological son of the review and primary applicant – Parents divorced so son would be exempt from national service – Applicant unemployed – Dependent on mother

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994,rr 1.05A ,1.12 Schedule 2 cl 309.21, 309.311

CASES
Al Naqi v MIAC [2007] FMCA 874

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 July 2017 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 7 October 2013 on the basis of his relationship with his 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 who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter it is the secondary criteria in cl.309.311 that is relevant to the visa applicant.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.311 because the delegate was not satisfied that the visa applicant, Salar Dolatkhahnejad, was the dependent child of, or the member of the family unit of, the spouse of the review applicant.

4. The review applicant appeared before the Tribunal on 8 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and from his mother via telephone.

5. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa applicant in this review was the secondary visa applicant, and the son of the primary visa applicant, in the application for the subclass 309 visa.   Based on the evidence before it, I am satisfied that the primary visa applicant and the younger secondary visa applicant, (that is the mother and younger brother of the visa applicant in this review), have been granted subclass 309 visas. The issue in the present case is whether the visa applicant is the dependent child, and a member of the family unit of the primary visa applicant, his mother, as named in the original application for the visa.

8. To meet the requirements of cl.309.311 the secondary visa applicant is required to be a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21 at the time of application.

9. As the primary visa applicant is the holder of a subclass 309 visa, I am satisfied she meets the primary criteria in Subdivision 309.21. Based on the application forms, I am satisfied the visa applicant Salar made a combined application for the visa with his mother, the primary visa applicant.

10. The issue to be determined in this review is whether the visa applicant, Salar, is a member of the family unit of the primary visa applicant within the meaning of r.1.12 at the time of application.

11. Based on the visa applicant’s identification documents including his Iranian passport, Iranian identity certificate, Iranian national identity card and Iranian conscription service exemption card, I am satisfied that he was born in 1992, and at the time of application which was 6 October 2013, he was 21 years of age.   Based on the names of his parents recorded on the identity certificate, I am satisfied that the visa applicant Salar is the biological son of the review applicant and the primary visa applicant. Therefore I am satisfied that Salar is the child of the primary visa applicant, Masoumeh, in the original visa application, and the review applicant, Majid, in this review, and was aged over 18 years of age at the time of application for the visa.

12. A child is a member of the family unit within the meaning of r.1.12(1) (b) if the person is the dependent child of the family head or of the spouse or de facto partner of the family head.   I am satisfied, as stated above that the visa applicant Salar, is the child of the primary visa applicant Masoumeh.  Based on the certified copy of marriage deed, I am satisfied that the primary visa applicant and the review applicant were married in 1991.

13. I have considered that the primary visa applicant and review applicant are divorced, and the divorce document is dated 29 May 2011, and the document records authorisation for the divorce was dated 30 October 2010. I have considered the visa applicant, Salar, was exempted from national service, and the evidence before me is that the visa applicant’s parents obtained a divorce so their eldest son, Salar, was exempted from national service. I have considered and have given significant weight to the fact the Department granted the primary visa applicant a subclass 309 visa despite the evidence that she had divorced her husband, and therefore I conclude the Department accepted that the primary visa applicant and the review applicant obtained the divorce to enable Salar to avoid national service, and they remained in a genuine spousal relationship. 

14. I am satisfied that the review applicant was employed as a taxi driver in Tehran, and then came to Australia in April 2010.  I am satisfied that Majid worked in construction in 2011 in Australia, and was injured at work that year.  I am satisfied based on the evidence before me that Majid the review applicant has not been employed since he suffered the injury, and is now in receipt of a disability pension.

15. I am satisfied based on the evidence before me that the visa applicant’s mother Masoumeh, worked as a tailor in Tehran.  I am satisfied that she was granted the visa in 2017, and came to Australia with her younger son, and stayed with the review applicant for more than five months.  I am satisfied she then returned to Iran to support her older son, Salar.  The visa applicant and his mother gave evidence via telephone from Tehran, at the hearing.

16. The issue for the tribunal to determine is whether the visa applicant is dependent upon the primary visa applicant within the meaning of r.1.05A at the time of application.   

17. I have considered that the Conscription Service Exemption Card dated 27 May 2012 records that Salar is exempted from national service “on the grounds of supporting his parents”.  This document does not record that Salar is financially supporting his parents.  The evidence before me is that his father was in Australia at that time, so the use of the word “parents” in the document cannot be correct. The evidence before me is that Salar’s parents obtained the divorce to demonstrate that his mother relied on Salar for emotional and practical support.

18. I have considered the casenote on the Department file that record the verbal information provided by the primary visa applicant that the visa applicant worked as a taxi driver.  I have considered in the typed notes of the interview conducted with the primary visa applicant, and then with her two sons, it is recorded that they advised that the visa applicant had worked for a short time as truck or as a truck/van driver after leaving school.  In the hearing the review applicant and the visa applicant both stated that in Iran only married family men can obtain a taxi permit. I have considered the parties’ claim that there must have been a misunderstanding, as the review applicant had previously worked as a taxi driver, but the visa applicant had never worked in this capacity.   In the hearing the review applicant stated his son Salar had never held a driver’s licence, had failed his driver’s test and never worked as a driver.  He stated his wife has a pick up truck and has a driver’s licence.   Salar stated he had never worked as a driver.  He stated to gain employment you need experience, or to gain expertise from your father. His mother Masoumeh told the tribunal that her son Salar has not worked.  She remembered the name of the embassy officer who interviewed her, and stated there may have been misunderstandings.  She stated she had been scared for her son, and contrived the divorce so he did not have to do military service.  She stated living circumstances were very difficult, and her son had not had work.

19. The witnesses gave consistent evidence that they had lived with the primary visa applicant’s parents in the twelve months prior to the time of application.  The witnesses gave consistent evidence that the family moved to the review applicant’s parents’ house after the death of the primary visa applicant’s father, and the roof collapse on the second storey of the primary visa applicant’s family’s house. I am satisfied the address for the applicant’s at the time of application is the address of the primary visa applicant’s family.

20. I have considered the evidence of the three witnesses at the hearing.  I accept the bundle of receipts for money transfers represents all the receipts the review applicant has for the money he sent to his family since he arrived in Australia, over the period 2011 to 2017. In the twelve month period immediately prior to the time of application there is one receipt, and it is a hand written receipt not on letterhead in the amount of $355 dated 15 August 2013 in the name of the review applicant’s sister. This is not a receipt that could be traced or confirmed.   I accept the review applicant has provided financial support over the years since he has been in Australia, based on the bundle of receipts.  However, I give the receipt dated 15 August 2013 no weight as evidence of money transfer from the review applicant to the primary visa applicant or to Salar, as it is not in the name of those persons, and nor is it a reliable document.

21. I have had to carefully consider the oral evidence before me, in light of general country information.   I have considered the DFAT Country Information Report, Iran, 21 April 2016, Economic Overview which records that unemployment is at 10%, informal estimates suggest it may be as high as 40%, and unemployment is substantial among young people and women.   Whilst I am considering the situation at the time of application in 2013, I give some weight to the difficulty for young people in the visa applicant’s situation in obtaining employment.  I accept the visa applicant left school aged 16 years, and his father had departed Iran and so he did not have his assistance to gain experience to lead to employment.

22. I have balanced the Department decision record dated 16 July 2017 page 4 third paragraph that records both the visa applicant Salar and his mother stated that Salar had worked part time as a taxi driver. I have considered the notes of the interviews conducted with the three visa applicants as named in the original visa application (folio 274) which record that the primary visa applicant stated Salar left school nine years ago and worked for a short time as a truck driver, and that Salar stated he worked for some months as a truck/van driver.   I note the information recorded in inconsistent with the decision record, and therefore I give it limited weight.

23. I have also considered the case note made by the embassy in May 2017 that the primary visa applicant advised that Salar was currently working as a taxi driver.   I have considered the oral evidence before me that Salar has never worked or been employed as a driver.  I have considered it is relatively easy to make broad statements to the tribunal that an applicant has never been employed.   I have considered there are differing records of statements given to embassy officials and the tribunal as to whether the visa applicant has worked for a short period as truck or van driver after he left school, whether he has been in recent times or previously been employed part time as a taxi driver, or whether he has never been employed. 

24. I consider there is sufficient inconsistency to indicate that there is some cause for concern about the credibility of the oral evidence that the visa applicant has never been employed.  I am satisfied the visa applicant may have worked as a truck or van driver for a short period after he left school. I accept that the visa applicant may have been able to obtain other short terms of employment.  However, I am satisfied that generally the ability of the visa applicant to obtain employment is low, and this is supported by the general country information about employment in Iran.   I am satisfied that there is no evidence before me that the visa applicant was employed in the twelve months immediately prior to the time of application.

25. In the twelve months immediately before the time of application, I am satisfied that the visa applicant resided with his mother in his maternal grandparents’ home.  I am satisfied that his mother was employed as a tailor in a warehouse at that time.  I am satisfied that his mother provided for their expenses at her parents’ home, including contributing to household expenses.

26. I have considered that the visa applicant’s accommodation expenses were provided through the home owned by his maternal grandparents.    However I have applied the ‘broad practical’ approach as espoused in Al Naqi v MIAC [2007] FMCA 874, and I am satisfied that the visa applicant’s accommodation expenses are provided by his dependence upon the family head, namely his mother. I am satisfied that the family home in Iran is lived in by the extended family, and the visa applicant’s dependence upon his mother, is the reason he is provided with the accommodation and shelter through his family home. I am satisfied the visa applicant’s mother was working and providing financial support to her parents as well as her two sons.

27. For these reasons, at the time of application, and for a substantial period, (namely twelve months) immediately before the time of application, the tribunal is satisfied that Salar, the visa applicant is wholly or substantially reliant upon his mother, the primary visa applicant, for financial support to meet his basic needs for food, clothing and shelter; and that Salar’s reliance upon his mother is greater than any reliance by him on any other person or source of support for financial support to meet his basic needs for food, clothing and shelter.

28. Therefore I am satisfied that at the time of application the visa applicant, Salar is dependent on his mother the primary visa applicant within the meaning of r.1.05A, and is the dependent child and the member of the family unit of the primary visa applicant within the meaning of r.1.12(1)(b).

29. For these reasons, I am satisfied that the visa applicant meets the requirements of cl.309.311.

30. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

31. 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.

    Margie Bourke
    Member