Ghafari (Migration)

[2018] AATA 3682

Ghafari (Migration) [2018] AATA 3682 (7 August 2018)

DECISION AND WRITTEN STATEMENT

DIVISION:Migration & Refugee Division

SPONSOR:Mrs Sewita Ghafari

APPLICANT:  Mr Elham Karim

SECONDARY APPLICANTS:  Ms Shazia Karim
Ms Razia Hassan

CASE NUMBER:  1607944

DIBP REFERENCE(S):  BCC2014/3594928

MEMBER:Nicholas McGowan

DATE:07 August 2018

PLACE OF DECISION:  Melbourne

DECISION:Remit to the Minister as per point 3.

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Secondary visa applicants – Reliance on the applicant – Applicant’s continual financial support to family – Financial receipts and international money order – Decision under review remitted

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

1. The applicant and his sponsor attended a public hearing conducted by this tribunal on Monday August 6, 2018 in Melbourne, Victoria. Under authority from the Minister, a public servant found the secondary applicants (attached to the applicant’s own visa application) did not meet the criteria for the grant of their visas. They were refused their visas on the basis that they had not been ‘for a substantial period immediately before the date of application, ‘wholly or substantially reliant’ on the applicant for ‘financial support to meet their basic needs for food, clothing and shelter’, and that their ‘reliance on’ the applicant is ‘greater than any reliance by them on any other person, or source of support’ (for the purposes stated). The applicant has (since the refusal of his secondary applicants visas) been granted his own 309 partner visa. Accordingly, he now resides with his Australian-born wife and their newborn daughter in Melbourne, Victoria.

2. The applicant’s evidence to the tribunal was that at the time of application for the visas he was working and living separately from his mother and sister who lived in their home in Jalālābād. He lived separately because his work for the International Committee of the Red Cross required his presence as a medical doctor in many parts of the country. The home his mother and sister lived in (shelter) was originally owned by the applicant’s great grandparents, grandparents, his mother and father, and so forth. In other words, it is the applicant’s ancestral home. It has been passed down and occupied by their family over generations. After the death of the applicant’s father, as his father’s son, he claims he became (if he wasn’t already) the head of the household. The applicant claims he continued to support his mother and sister since. This claim is consistent with all of the oral and documentary evidence provided to the tribunal. Importantly, the applicant has provided the tribunal with additional documentary evidence which he did not provide to the Minister or Department of Immigration. This financial documentary evidence supports the applicant’s oral claims and clearly indicates that since leaving Afghanistan he continues to support his mother and sister to help meet their needs, including as prescribed under the Act. The financial receipts and international money order transactions are evidence of consistent and ongoing financial support by the applicant, for his mother and sister, over a period commencing prior to the time of application and since. At the hearing the applicant advised his mother and sister have recently (over the past few weeks) moved to Kabul and are staying with a friend of the applicant’s as the security situation in Jalalabad has deteriorated. It is expected that this is a temporary move, but nobody can be certain. The applicant is unable to say how long they will remain, and advises the tribunal that his friend, Mohammed Omar, whose home they are currently living in, is not charging any rent for his family to reside there. They are in effect staying with the applicant’s friend because of his request for them to do so. It is claimed that none of the parties, including the mother (who has not remarried) and the daughter (who states she is neither married nor engaged) receive any financial support from any other source. There is no evidence before the tribunal which contradicts or causes the tribunal to reasonably doubt the claims made in this regard.

3. Given all of the above, the tribunal finds that regulations 1.05A(2) and 1.12(1)(c) have been met for the purposes of clause 309.311 of subdivision 309.31 of the Act. It follows that this tribunal remits these applications for the subclass 309 visas for the secondary applicants to the Minister for further consideration.

Statement made on 07 August 2018 at 1:06pm