Ima (Migration)

[2024] AATA 1468

Ima (Migration) [2024] AATA 1468 (17 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Amran Hossain Sarder

VISA APPLICANT:  Miss Tania Amran Ima

REPRESENTATIVE:  Mr Mohamed Nasir Ullah

CASE NUMBER:  2401691

HOME AFFAIRS REFERENCE(S):          BCC2017/1702587

MEMBER:Wan Shum

DATE:17 May 2024

PLACE OF DECISION:  Sydney

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

Statement made on 17 May 2024 at 12:03pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – secondary visa applicants – member of the family unit – visa applicant over 23 years – wholly or substantially reliant on the family head – no incapacity for work – decision under review affirmed       

LEGISLATION

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 a Partner (Provisional) (Class UF) visa to the visa applicant under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 12 May 2017 as the child of Mrs Shahana Afroz. Mrs Shahana Afroz was granted a Partner (Provisional) (Class UF) Subclass 309 visa on 12 January 2024. On the same day, the delegate refused to grant a Subclass 309 visa to the applicant for the reason that the requirements of cl 309.321 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) were not satisfied.

3. The review applicant sought review of the decision and appeared before the Tribunal on 16 May 2024 to give evidence and present arguments. Mrs Shahana Afroz and Ms Munira Amran Ima were also in attendance.

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

   BACKGROUND

5. The visa applicant is a national of Bangladesh, born in June 1999. She is the daughter of Mrs Shahana Afroz.

6. Mrs Shahana Afroz had applied for a Partner (Provisional) (Class UF) subclass 309 visa and a Partner (Migrant) (Class BC) subclass 100 visa on 12 May 2017 and included her two children, one of whom is the visa applicant, as a migrating family member. The Partner application was based on her spousal relationship with Mr Amran Sarder. He is the review applicant in this matter. The Subclass 309 visa was initially refused by the Department because Mrs Afroz had provided information that was considered to be false or misleading in a material particular and there were no circumstances that justified a waiver such that Public Interest Criterion 4020 was not satisfied. On review, the Tribunal, differently constituted, found that while it was the case that Mrs Afroz and the review applicant had provided false or misleading information, there were compelling and compassionate circumstances that justified a waiver such that PIC 4020 was satisfied.

7. Both the subclass 309 and subclass 100 visas were subsequently granted to Mrs Afroz, as the person who satisfied the primary criteria, and her youngest daughter on 12 January 2024. However, the delegate refused to grant the Subclass 309 visa to the visa applicant because she did not satisfy cl 309.321. The delegate found that the visa applicant was not a ‘member of the family unit’ of a person who satisfies the primary criteria at the time of decision.

8. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (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.

9. Regulation 1.12(2) provides that a person is a member of the family unit of another person (the family head) if the person is:

   ·the spouse or de facto partner of the family head;

   ·a child or step-child of the family head or their spouse or de facto who is not engaged, or has a spouse or de facto partner and has not turned 18 or, if aged between 18 and 22 years of age is dependent on the family head (or partner), or if 23 years of age or older is wholly or substantially reliant on the family head (or partner) because they are incapacitated for work due to loss of bodily or mental functions;

   ·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild).

10. The issue in this review is whether the visa applicant is a member of the family unit of Mrs Shahana Afroz and satisfies cl 309.321 which is assessed at the time of decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. In the circumstances of this case, the visa applicant is claiming to be the child of Shahana Afroz. Mrs Afroz is the ‘family head’ for the purposes of r 1.12(2). There is no suggestion that the relevant relationship meets the requirements of the other alternatives, so in order to be a member of the family unit of Mrs Afroz, she must be the child or step-child of Mrs Afroz or of a spouse or de facto partner of Mrs Afroz (other than a child or step-child who is engaged to be married or has a spouse or de facto partner). The term ‘child of a person’ is defined in s 5CA of the Act and the term ‘step-child’ is defined in reg 1.03 of the Regulations.

12. The evidence before the Tribunal is that the applicant is the biological child of Mrs Shahana Afroz. There is nothing before the Tribunal to suggest that Mrs Shahana Afroz is not the applicant’s mother.

13. The Tribunal finds that the applicant is the ‘child’ as defined in s 5CA of the Act of Mrs Shahana Afroz and she is the family head for the purposes of determining whether 1.12(2) is met.

14. The child or step-child of the family head or of a spouse or de facto partner of the family head must meet certain dependency requirements. Essentially, the child or step-child must not be engaged, married or in a de facto relationship, have not turned 18, or if aged between 18 and 22 years of age they must be ‘dependent’ within the meaning of reg 1.05A, or if 23 years of age or older 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.

15. At the time of this decision, the applicant is 24 years and 11 months. She had turned 23 on 16 June 2022. As she is over 23, the Tribunal must be satisfied that she is dependent on the family head because they meet reg 1.05A(1)(b), i.e. that they are 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. It is not claimed that she is incapacitated for work. The review applicant stated that the visa applicant is dependent on him financially and is still studying. However, as explained, when the child is over 23, they will only meet the definition of ‘member of a family unit’ if they are dependent because he or she is incapacitated for work due to the total or partial loss of their bodily or mental functions. There is no claim or evidence of this.

16. The Tribunal acknowledges that the visa applicant was not yet 18 when the visa application was initially made and that, due to the time that has passed while the application was being processed, is now over 23. This includes the initial visa refusal in 2019 because they had provided false and misleading information and the earlier review application finalised in December 2022, by which time the visa applicant had already turned 23. While the sponsor denied providing false or misleading information at the hearing, the decision in the earlier review was that the parties had provided such information, but that there were compelling and compassionate circumstances that justified the waiver.

17. In any case, regardless of the reason for the lengthy processing time, cl 309.321 relevantly requires an assessment of whether the applicant is a member of the family unit of a person who satisfied the primary criteria and holds a Subclass 309 visa at the time of this decision or was found by the Tribunal to be a member of the family unit of a person who was subsequently granted a Subclass 309 and 100 visa on the basis of satisfying the primary criteria. In this case, neither of the alternatives are made out because the applicant needs to be a ‘member of the family unit’ as defined. There is no express provision for this to be assessed based on her age at the time the visa application was made. Nor is there any allowance for assessing eligibility for the visa on dependency alone.[1] The Tribunal does not have any discretion on this issue. As she is now over 23, the visa applicant can only meet the definition of ‘member of a family unit’ if she is incapacitated for work because of a total or partial loss of bodily or mental functions.

    [1] Compared to the situation for secondary partner visa applicants who no longer meet the age requirements for the partner visa if they were sponsored by persons that were unauthorised maritime arrivals (refer Migration Amendment (Dependent Secondary Partner Visa Applicants) Regulations 2024).

18. As there is no claim and no evidence that she is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions, she does not meet the requirements of reg 1.05A(1)(b), which means that the visa applicant is not a ‘member of the family unit’ of a person who satisfied the primary criteria and cl 309.321 is not met.

    DECISION

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

    Wan Shum
    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.

    …

    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) …