Gulzari (Migration)

[2023] AATA 3667

Gulzari (Migration) [2023] AATA 3667 (5 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ali Dost Gulzari

VISA APPLICANT:  Miss Sughra Gulzari

CASE NUMBER:  2307957

HOME AFFAIRS REFERENCE(S): BCC2017/3725506 BCC20173725506

MEMBER:Christine Kannis

DATE:5 October 2023

PLACE OF DECISION:  Perth

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

Statement made on 05 October 2023 at 6:37pm

CATCHWORDS

MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Partner) – member of the family unit – dependent on the family head – no employment in Pakistan – emotional separation from family – decision under review affirmed

LEGISLATION

Family Law Act 1975
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 309.321; rr 1.03, 1.05, 1.12

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 Home Affairs to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. Ms Gul Chaman Gulzari (the primary applicant) applied for the visa on 11 October 2017 on the basis of her relationship with her sponsor, the review applicant. The review applicant sponsored the visa applicant as a secondary 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 secondary criteria must be satisfied by the visa applicant because she was a secondary applicant on the primary applicant’s Subclass 309 visa application. Relevantly to this matter the secondary criteria includes cl 309.321.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.321 because the delegate was not satisfied she was a member of the family unit of the primary visa applicant at the time of decision.

4. The review applicant appeared before the Tribunal on 2 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant (by MS Teams Video) and from Ms Gul Chaman Gulzari. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

5. The review applicant and Ms Gul Chaman Gulzari are the parents of the visa applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present matter is whether the visa applicant meets the time of decision criteria in cl 309.321, which says:  

   The applicant:

   (a)  continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 309 (Partner (Provisional)) visa (the person who satisfies the primary criteria); or

   (b)  is a person to whom each of the following applies: 

   (i)  the person made a combined application with the person who satisfies the primary criteria;

   (ii)  subsequent to the combined application being made, the person was found by the Minister not to be a member of the family unit of the person who satisfies the primary criteria;

   (iii)  subsequent to the person who satisfies the primary criteria being granted a Subclass 309 (Partner (Provisional)) visa and Subclass 100 (Partner) visa — the Tribunal found the person to be a member of the family unit of the person who satisfies the primary criteria.

8. Clause 309.321 requires that the visa applicant at the time of decision continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of the Subclass 309 (Partner (Provisional)) visa (the person who satisfies the primary criteria).  Having satisfied the primary criteria, Ms Gul Chaman Gulzari was granted Subclass 309 visa on 20 March 2023 and the Tribunal so finds.

9. The Tribunal then considered whether the visa applicant continues to be a member of the family unit of Ms Gul Chaman Gulzari at the time of this decision.

10. Section 5(1) of the Act says that ‘member of the family unit’ of another person has the meaning given by the Regulations. Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations.  Regulation 1.12 (2) says:

    General rule

    (2)  A person is a member of the family unit of another person (the family head) if the person:

    (a)  is a spouse or de facto partner of the family head; or

    (b)  is a child or step‑child of the family head or of a spouse or de facto partner of the family head (other than a child or step‑child who is engaged to be married or has a spouse or de facto partner) and:

    (i)  has not turned 18; or

    (ii)  has turned 18, but has not turned 23, and is dependent on the family head or on the spouse or de facto partner of the family head; or

    (iii)  has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or 

    (c)  is a dependent child of a person who meets the conditions in paragraph (b).

    This subregulation has effect subject to the later subregulations of this regulation.

11. Regulation 1.12(2)(b) says a person is a member of the family unit of the family head if, among other things, they are the child or step-child of the family head or of a spouse or de facto partner of the family head.  In the context of a subclass 309 visa, the family head is the person who satisfies the primary criteria for the grant of the visa. In the present case the primary applicant (Ms Gul Chaman Gulzar) is the family head and the visa applicant claims to be her child. For the purposes of reg 1.12(2)(b), child of a person is defined under section 5CA of the Act to include someone who is a child of the person within the meaning of the Family Law Act 1975. In the present case, the basis for the application is that the visa applicant is a child of the primary applicant and the review applicant. The visa applicant provided a passport, a tazkira (Afghan National Identity document) which indicates her parentage and a Form 80 which details her family composition. Based on the evidence, the Tribunal finds that the visa applicant is a child of the primary applicant and the review applicant within the meaning of section 5CA of the Act.

12. Regulation 1.12(2)(b) says that if the child or step-child is 23 years of age or older, to meet the dependency requirements they must be dependent on the family head or on the spouse of the family head under paragraph 1.05A(1)(b).

13. Regulation 1.05A(1)(b) defines dependency as follows:

    (1)  Subject to subregulation (2), a person (the "first person") is dependent on another person if:

    (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.

14. The delegate referred to information available to the Department which indicated the visa applicant attended a panel doctor for her immigration health assessment, and that the medical practitioner's response to the question regarding whether there are any physical or mental conditions which may prevent her from attending a mainstream school, gaining full employment or living independently now or in the future was “No”. The delegate stated that the medical practitioner responded "No" with declarations  made on 5 February 2021 and 8 March 2023.  

15. On 14 March 2023, the primary applicant was sent a Natural Justice letter inviting her to comment regarding the adverse information relating to the visa applicant’s eligibility to meet the definition of member of family unit under reg 1.05A(1)(b). The letter stated:

    I note on 05 February 2021, Sughra GULZARI, completed and met the health requirement for the Partner visa. I further note Sughra GULZARI declared in her medical declaration as part of the health examination, that she did not suffer from any ongoing physical or intellectual disability affecting your current or future ability to function independently or be able to work full time.

    I also note on 08 March 2023, Sughra GULZARI, completed and met the health requirement for the Partner visa for the second times. I further note Sughra GULZARI also declared in her medical declaration as part of the health examination, that she did not suffer from any ongoing physical or intellectual disability affecting your current or future ability to function independently or be able to work full time.

    Based on the information before me, Sughra GULZARI do not appear to meet

    criteria 309.321 as she is 25 years age, at time of decision, and there is no information before me to demonstrate she satisfy criteria 1.05A(1)(b).

16. On 21 March 2023, the visa applicant provided a written statement in which she said she is dependent on the review applicant and he is the only one who can support her because she is living illegally in Pakistan and is not allowed to work there.

17. On 28 April 2023, the primary applicant provided a written submission from a migration agent which included the following information:

    ·The visa applicant is a 25-year-old female born in Afghanistan. She has been living in Quetta, Pakistan for most of her life as an Afghan refugee without any legal status.  She does not have any legal status in Pakistan, and she does not have access to services like healthcare and educational institutions. She has been attending private classes to learn English as well as finishing her high school education at a private school in Hazara Town, Quetta. She could not pursue her tertiary education as high education institution because her illegal status in Pakistan. She has been attending various classes to learn and educate herself.

    ·The visa applicant has never worked and has never had an income. She has depended on her father for financial, emotional and psychological support. Her father has been in regular contact with his family while he has been living apart from them. He is currently visiting his family in Pakistan and hoping that his wife and children are granted their visas so they call can migrate to Australia together.

    ·The visa applicant has been wholly dependent on the head of the family for her basic needs such as food, clothing and shelter. The father has been the only person on whom she has been reliant for financial support. Her mother has never worked and has never provided financial support. The visa applicant meets the definition of dependent child as per reg 1.05A (a).

    ·Considering the cultural background and traditional norms, until the child is unmarried and lives with his/her parents, he/she is always reliant and dependent on the parents for emotional, psychological and financial support. Women and girls are the most vulnerable and disadvantages members of the society both in Afghanistan and Pakistan. They have been under enormous pressure, harassment and abuse in a male dominated society.

    ·The visa applicant has never lived without her family, and it will be incredibly difficult for her to be separated from her parents and siblings. She will not survive on her own in a country where she lives illegally. She will never be able to return to her home country of Afghanistan because of the threats and dangers from the Taliban. It will be devastating and heartbreaking for the client and her family if they are separated from each other.  

    ·The visa applicant has been attending private English and computer classes to use her time wisely since she has completed her high school in 2019. She has been trying to improve her language skills to be able to easily integrate when she and her family migrate to Australia.

    ·If the visa applicant is forced to return to Afghanistan, she will be at a significant risk for harm and persecution at the hands of the Taliban and other terrorist groups. She will not be safe and will not have any support in Afghanistan.

18. The evidence before the Tribunal included Education certificates including certificates dated December 2021, January 2023 and February 2023. The certificates state that the visa applicant is a regular attending student. The courses referred to include Microsoft Word, Pencil Sketching, Pencil Colour and Pastel Colour.

19. The review applicant told the Tribunal that the visa applicant is not engaged or married. The passport submitted to the Department indicates her date of birth to be 19 October 1997 which means she is currently 25 years old. 

20. The review applicant told the Tribunal that he financially supports the visa applicant. He said she is living alone in a room in Pakistan and every month he sends her money to pay for rent and groceries. He told the Tribunal that the visa applicant currently attends school and that it is almost impossible to gain employment in Pakistan, especially for a female.

21. The Tribunal asked the review applicant about the emotional and  psychological support he provides to the visa applicant. He said prior to coming to Australia about 4 or 5 months ago, they were living as a family in Pakistan and after they left, the visa applicant was alone. He said she was very unhappy and very lonely when the family left. He said after the family left Pakistan, the visa applicant was prescribed medication for her stress. He said she is now on a reduced dose.

22. In response to the Tribunal asking whether, apart from the emotional suffering as a result of being separated from her family, the visa applicant suffers from any other physical or mental conditions, the review applicant stated that she did not.

23. The Tribunal asked the review applicant whether the visa applicant would return to Afghanistan if the visa is refused. He responded with an emphatic “No”.

24. The oral evidence provided by Ms Gul Chaman Gulzari was not materially different to the evidence provided by the review applicant.

25. The visa applicant provided the following evidence to the Tribunal:

    ·She does not work in Pakistan because it is difficult for a female to obtain employment.

    ·It is difficult for a female to live alone in Pakistan and if she were to find employment, it would be difficult as a female for her to be in a workplace.

    ·She is lonely, unhappy and stressed. When her family left Pakistan she was taking anti-depressant medication however when the application for review process was started, the dose was reduced.

    ·She has studied and is still studying English courses in preparation for coming to Australia. When her family left Pakistan she was unable to attend classes for one month because she was unhappy. She is now attending classes again and she has  a few more semesters before the course is complete.

    ·When the application for the visa was made she was under 23 years old and it is not her fault that she now doesn’t meet the criteria for the grant of the visa.

26. In response to the Tribunal asking the reason she is not able to work in Pakistan, the visa applicant said it is difficult for a female to find employment. She said her unhappiness also contributes to her inability to find employment.

27. As noted, the Regulations allow for a child of the family head or of a spouse or de facto partner of the family head, who is 23 years or older to be a member of the family unit under limited circumstances. Reg 1.05A(1)(b) says for a person to be considered dependent on another person they must be wholly or substantially reliant on the family head or their partner for financial support because they are incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

28. The declarations made by medical practitioners on 5 February 2021 and 8 March 2023 state that the visa applicant does not have any physical or mental conditions which may prevent her from attending a mainstream school, gaining full employment or living independently now or in the future. There was no medical evidence before the Tribunal  that the visa applicant suffers from any physical or cognitive disability which means she is incapacitated for work due to the total or partial loss of bodily or mental functions.

29. The Tribunal accepts that the visa applicant is unhappy and lonely however no medical evidence was provided to establish that her emotional hardship causes her to be incapacitated for work. The review applicant and the visa applicant each told the Tribunal that the reason the visa applicant is not employed is because it is very difficult for a female to find employment in Pakistan.  

30. Based on the evidence, the Tribunal finds:

    ·The visa applicant is the child of the primary applicant and the review applicant;

    ·The visa applicant is 25 years old;

    ·The visa applicant is dependent on the review applicant for financial support; and

    ·The visa applicant is not wholly or substantially reliant on the primary applicant or the review applicant for financial support because she is incapacitated for work due to the total or partial loss of bodily or mental functions

31. Given these findings, the Tribunal is not satisfied that the visa applicant meets the definition of dependent, as defined in reg 1.05A(1)(b) and consequently she does not meet the requirements of reg 1.12(2)(b)(iii). Therefore, she is not a member of the family unit of the primary applicant at time of decision and accordingly, cl 309.321 is not met and the decision under review must be affirmed.

32. The Tribunal acknowledges that the visa applicant wishes to travel in Australia and not be separated from her family.  However, the Tribunal is required to be satisfied that cl 309.321 is met, and that it is met in the way set out in in the clear wording of the clause, regardless of the reasons why the requirements are not met or any compassionate circumstances. The Tribunal is bound to apply the law as it is written. There is no discretion for the Tribunal to waive the need to meet cl 309.321.

33. For the reasons above, the visa applicant does not satisfy the time of decision criteria for the grant of the visa.

    DECISION

34. The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC).

    Christine Kannis
    Member

    1.12     Member of the family unit

    (1)This regulation has effect for the purposes of the definition of member of the family unit in subsection 5(1) of the Act.

    General rule

    (2)A person is a member of the family unit of another person (the family head) if the person is:

    (a)     a spouse or de facto partner of the family head; or

    (b)     a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de factor partner) and:

    (i)has not turned 18; or

    (ii)has turned 18, but has not turned 23 and is dependent on the family head or on the spouse or de facto partner of the family head; or

    (iii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

    (c)      is a dependent child of a person who meets the conditions in (b).

    This subregulation has effect subject to the later subregulations of this regulation.

    …