Ishfaq (Migration)

Ishfaq (Migration) [2017] AATA 1239 (17 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Mohammad Ishfaq
VISA APPLICANT:  Ms Mahroof Jan
CASE NUMBER:  1605870
DIBP REFERENCE(S):  BCC2015/3986427
MEMBER:Christine Kannis
DATE:17 July 2017
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 17 July 2017 at 7:19am
CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 – Member of family unit – Not dependent on the family head
LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 309.311, cl 309.321, r 1.03, r 1.05A, r 1.12

CASES

Huynh v MIMA [2006] FCAFC 122
Al Naqi v Minister for Immigration & Anor 2007] FMCA 874
Alimi vMinister for Immigration & Anor [2007] FMCA 1520
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 April 2016 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant was a dependent on the application of her daughter-in-law, Simki Noreen. Ms Noreen, along with others including the visa applicant, made a combined application for Partner (Provisional) (Class UF) Subclass 309 visas on 21 December 2015. Ms Noreen applied for visa on the basis of her relationship with her sponsor, Mohammad Ishfaq. 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, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the secondary criteria include cl.309.311 and cl.309.321.
This decision relates only to the visa applicant who was listed as a secondary applicant on Ms Noreen’s spouse visa application.
The delegate refused the visa on the basis that the visa applicant did not satisfy cl.309.311 because the delegate was not satisfied that she was a member of the family unit of Ms Noreen.
The review applicant is Mr Mohammad Ishfaq, the visa applicant’s son.
The review applicant appeared before the Tribunal on 12 June 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Noreen and by telephone from the visa applicant.
The Tribunal was assisted by an interpreter in the Urdu and English languages.
The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue before the Tribunal is whether the visa applicant is a member of the family unit of her daughter-in-law, Ms Noreen. This is both a time of application criteria and a time of decision criteria.
Clause 309.311 contains secondary criteria that must be satisfied by applicants who are members of the family unit of a person who has satisfied the primary criteria in 309.21. At the time of decision the secondary visa applicant must continue to be a “member of the family unit” of a person who has satisfied the primary criteria; cl.309.321.
Ms Noreen is the primary visa applicant. The review applicant and Ms Noreen confirmed that Ms Noreen has been granted a Subclass 100 visa. The Tribunal is satisfied that Ms Noreen has been found to have satisfied the primary criteria for the Subclass 309 visa and has been granted a Subclass 100 visa.
Regulation 1.12 defines the circumstances in which a person is a member of the family unit of “another person”, 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. The person who has satisfied the primary criteria is Ms Noreen, and the visa applicant must be a member of her family unit to satisfy cl.309.311.
The Tribunal noted that the legislation has now changed however at the time of application, and relevant to this decision, r.1.12(1)(e) relevantly said:
… a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(e) a relative of the family head or of a spouse or de facto partner of the family head who:
Regulation 1.03 defines “relative” to include a “close relative” which in turn is defined to include the parent of a person. A Birth Certificate evidencing that the visa applicant is the review applicant’s mother was provided. The Tribunal finds that the visa applicant is a relative of Ms Noreen’s spouse.
Regulation 1.12(1)(e)(i) requires that the applicant have no spouse or de facto partner. In this case the evidence initially provided showing family members purporting to be paying their respects at the visa applicant’s husband’s grave was inconsistent with documentary evidence provided. The name on the grave differed significantly from Marriage Registration and Family Registration Certificates. No Death Certificate was provided at that time.
Based on the initial evidence provided, the delegate was not satisfied that the visa applicant did not have a spouse or de facto partner at the time of application.
The Tribunal was provided with the Death Certificate of Mohammed Ishaq Tabassum. The Family Registration Certificate was provided which showed the deceased was the review applicant’s father. The review applicant’s father’s death is recorded as having occurred on 20 July 2014 and the Tribunal so finds. There is nothing to suggest that the visa applicant has remarried or is in a de facto relationship. The Tribunal finds that the visa applicant does not have spouse or de facto partner.
The evidence was that prior to Ms Noreen and her daughters leaving Pakistan, the visa applicant lived with Ms Noreen for at least 12 or 13 years. Ms Noreen and her three daughters arrived in Australia on 28 August 2016. The review applicant and Ms Noreen told the Tribunal that if the visa applicant is permitted to reside in Australia, she will live with the review applicant and Ms Noreen.
The Tribunal finds that the visa applicant is usually resident in Ms Noreen’s household. The Tribunal is satisfied that the visa applicant would reside in Ms Noreen’s household if she is granted a Subclass 309 visa. Accordingly regulation 1.12(1)(e)(ii) is met.
The Tribunal then considered regulation 1.12(1)(e)(iii), that is whether the visa applicant is dependent on Ms Noreen as defined in the Act.
The term ‘dependent’ is defined in r.1.05A. This regulation prescribes clear objective criteria to be met for dependence to be established. First, r.1.05A(1) stipulates that the person who is claiming to be dependent (the ‘first person’) must be, at the time at which consideration is being given, ‘wholly or substantially’ reliant on the other person. Second, that degree of reliance is required to have been for a substantial period immediately before that time. Thirdly, the financial support being provided must be to meet the first person’s basic needs in three respects: viz: food, shelter and clothing. Lastly, the first person’s reliance on the other person must be greater than his or her reliance on any other person or source of financial support to meet those basic needs: Huynh v MIMA [2006] FCAFC 122 at [28]. The Full Federal Court held in Huynh, that the words of the regulation, on their proper construction, do not carry with them any implication of there being a necessity to provide the relevant support. The question which the Regulations require to be addressed is whether as a matter of fact, the first person is relying for support on the other person: Huynh at [44].
According to Department guidelines (the Procedures Advice Manual), “substantial period” in the context of r.1.05A(1)(a)(i) means at least 12 months.
The review applicant has been living in Australia since 2007. Ms Noreen and their three children remained in Pakistan until August 2016.
The review applicant and Ms Noreen had a fourth child, born on 23 March 2017 in Western Australia.
The review applicant told the Tribunal that when Ms Noreen and his three daughters were living in Pakistan, he sent money to his brother-in-law, Mr Ahmed Tanveer. He said Mr Tanveer then gave the money to Ms Noreen so she could pay the household and family’s expenses. He sent varying amounts each month depending on the amount he was able to send after payment of his expenses in Australia. He sent larger amounts on occasion such as when the house in Pakistan needed renovations or new carpet.
The review applicant explained that the money he sent was not strictly divided between Ms Noreen and the visa applicant. He said his mother is not an educated woman and she has difficulty handling currency. He said some of the money was given to his mother so that she would not have to ask Ms Noreen for money. He said the money was given out of respect.
The review applicant said when Ms Noreen was in Pakistan she worked as a teacher. He said both the money he sent and Ms Noreen’s salary were used to pay the household and family’s expenses.
The review applicant told the Tribunal he owned the house in which Ms Noreen, the visa applicant and his three daughters lived in Pakistan. The visa applicant currently lives in the house alone and the review applicant said it is a very difficult situation because he relies on other family members and neighbours to provide her with practical assistance.
The Tribunal asked the review applicant the source of payment for his mother’s clothing. He said she cannot go to the shops alone and said Ms Noreen went with her and paid for her clothing. When asked about the source of money for these clothes the review applicant said they are a joint family who all live together and when needed they spend their money. The review applicant said since his father passed away in July 2014, he has been responsible for payment of the outgoings on the house.
The review applicant told the Tribunal that after Ms Noreen and his daughters left Pakistan, he has continued sending money to the visa applicant. He wants her to know that she is part of the family’s future too and that he has not abandoned her.
Prior to the hearing the review applicant provided remittance receipts for the period January 2017 to May 2017. The receipts showed the review applicant sent the following to Mr Tanveer:
·2 January 2017     112,815 PKR for Family Expenses/Support Maintenance
·29 January 2017   203,840 PKR as a gift
·12 March 2017       54,915 for Family Immigration Expenses
·18 April 2017          60,206 PKR for Educational Expenses
·1 May 2017            23,361 PKR for Family Expenses/Support Maintenance
·15 May 2017          308,080 PKR as a gift
The review applicant said he sends Mr Tanveer whatever amount he is able to send to pay for his mother’s living expenses. Ms Noreen has not worked since she arrived in Australia due to her English language limitations and her pregnancy however the review applicant told the Tribunal he wants to her to start teaching again.
A Statement was provided which indicated that the review applicant sent amounts between 40,605PKR and 351,322 PKR in the period from August 2012 to October 2015 to Mr Tanveer. The Tribunal noted that at the date of application, and during the 12 month period beforehand, the Statement showed the review applicant had sent money to Mr Tanveer. Following the hearing the Tribunal sent the review applicant a letter pursuant to s.359A of the Act requesting his comment or response to the information contained in the Statement which showed the following payments were made to Mr Tanveer:
·8 December 2014     167,440.00 PKR
·22 December 2014    40,605.00 PKR
·10 January 2015       106,241.00 PKR
·10 February 2015      351,322.00 PKR
·19 March 2015          100,004.00 PKR
·29 April 2015             101,212.00 PKR
·3 June 2015              50,076.00 PKR
·24 June 2015            78,300.00 PKR
·12 August 2015         60,112.00 PKR
·14 September 2015   109,500.00 PKR
·15 October 2015       50,127.00 PKR
On 5 July 2017 the applicant’s representative provided a submission in response to the s.359A letter. The submission stated that during the period from August 2012 to October 2015, the review applicant sent money to his father and after his father passed away, he sent money to Ms Noreen through Mr Tanveer. The information provided in the submission, which addressed the payments made to Mr Tanveer in the period from 8 December 2014 to15 October 2015 as well as other matters, was not materially different to the oral evidence taken by the Tribunal at hearing.
Ms Noreen told the Tribunal that when she was living in Pakistan, the review applicant sent money to Mr Tanveer most months, but not every month. She said Mr Tanveer gave the money to her and said she spent it on the home, the family and on the visa applicant.
Ms Noreen said after Mr Tanveer gave her the money, she divided it in half and gave one half to the visa applicant. She said the visa applicant gave it back to her but sometimes she (Ms Noreen) returned some of it so that the visa applicant could buy items such as a toy for one of the children.
Ms Noreen told the Tribunal that she would accompany the visa applicant when she needed to buy clothes.
Prior to the hearing the review applicant provided a copy of what appeared to be Ms Noreen’s pay slip for the month of April 2016. The pay slip showed Ms Noreen’s salary for the month was 37,546 PKR gross.
The Tribunal also had regard to an Affidavit made by Ms Noreen on 9 May 2016 in which she said her monthly salary from her employment was 35,134 PKR and said she used it on a day to day basis to support her family including the visa applicant. She said the review applicant sent between 50,000 and 100,000 PKR per month. Ms Noreen said the visa applicant used her money to pay for some groceries and said she had spending money and money for clothing and personal needs. In her Affidavit Ms Noreen said the review applicant paid the bills and Mr Tanveer and the visa applicant did the grocery shopping.
In a Statutory Declaration dated 18 May 2017, Ms Noreen said the money from her employment and the money she received from the review applicant helped support the family as a unit. She said she did not distinguish between the sources of the money and said the family used all the funds available for the day to day household expenses.
Ms Noreen told the Tribunal that she does not intend working in Australia.
The Tribunal spoke to the visa applicant by telephone. When asked how she bought her food and clothing she said her daughter-in-law used to buy everything for her.
The Department conducted an interview with the visa applicant on 18 April 2016. When asked where she was living in Pakistan she said she was living with her son and he would take her to Australia. She said her daughter-in-law and her three grand-daughters lived in the house and confirmed that the review applicant owned the house and paid all the bills for the property. When asked how much the review applicant sent she said if he sent 50,000 PKR then she and Ms Noreen take 25,000 each and if he sent 100,000 PKR then they took 50,000 each. When she was asked what Ms Noreen paid for she said she paid for the children’s fees, admissions and other expenses.
The review applicant and Ms Noreen made Statutory Declarations on 18 May 2017 in which they said the visa applicant was 100% dependent on them and said they continue to support her.
The evidence demonstrated that the review applicant and Ms Noreen both contributed towards the household and living expenses of the visa applicant and the three children in the household. The evidence suggested that most of the money sent by the review applicant was used by Ms Noreen for these household and living expenses although she said that sometimes she gave a small amount back to the visa applicant.
The Tribunal noted that Ms Noreen used the money provided by the review applicant to financially support the visa applicant. Regulation.1.12 (1)(e) requires the visa applicant to be dependent on the family head.
At the date of application and for at least the preceding 12 months, the visa applicant lived in a home owned by the review applicant. The visa applicant continues to live in this home. At the date of application and for at least the preceding 12 months, the review applicant sent more money to Mr Tanveer each month than Ms Noreen earned each month from her employment. Whether the money was given to the visa applicant or to Ms Noreen, the larger source of the funds used to pay for the household and living expenses including the visa applicant’s clothing and food was from the review applicant. The Tribunal was satisfied that the greater source of funds used to provide food, shelter and clothing for the visa applicant was the review applicant.
The Tribunal considered whether the review applicant’s financial support can be considered to be financial support by Ms Noreen rather than by him. If Ms Noreen can be considered to be financially supporting the visa applicant to pay her food, housing and clothing costs then it would follow that she is dependent on Ms Noreen for the purposes of the visa.
A written submission from the review applicant’s representative cited the Federal Court decisions of Al Naqi v Minister for Immigration & Anor[1] and Alimi vMinister for Immigration & Anor[2]. Regulation 1.05A was considered in both these cases.
[1] 2007] FMCA 874
[2] [2007] FMCA 1520
In Al Naqi, in issue was whether the mother and brothers of the sponsor were dependent on the sponsor or on the sponsor’s wife. Federal Magistrate Reithmuller (as he then was) said that on a broad and practical level financial support for a person’s relatives from the person’s spouse can be considered support by the person if the spousal relationship is an essential or substantial reason the support is provided. He went on to say at [17]:
… there is no real doubt that the applicant would continue to support his mother and brothers regardless of the nature of his relationship with his wife, and indeed, even if he, his mother or brothers had no relationship with his wife. In these circumstances it is difficult to see how it can properly be said that the applicant’s mother and brothers are dependent upon his wife. The applicant is the ultimate source of the funds, and the reason the support is not based upon any relationship of the applicant or the claimed dependents with his wife, nor any reliance upon the wife.
In Alimi it was argued that Al Naqi was wrongly decided, and Federal Magistrate Riley said at [19]:
As to Al Naqi it appears to me that overall result was correct…. The ratio of Al Naqi appears to me to be that, at least in relation to secondary applicants for a partner visa, where the ultimate source of support is a particular person, the secondary applicant is not a dependent of the person’s spouse.
In the present case, the financial support of the visa applicant from Ms Noreen’s spouse, the review applicant, cannot be considered support by Ms Noreen because the spousal relationship is not an essential reason the support is provided. The review applicant’s support is not in any way dependent upon his relationship with Ms Noreen.
The written submission also contended that Ms Noreen is the head of the household and said she would continue supporting the visa applicant even if the review applicant did not contribute because of Pakistani culture. This was not raised during the hearing and in any event Huynh makes it clear that it is the fact of dependence which is relevant.

Based on the material before it, the Tribunal therefore finds that the visa applicant was at the time of application and at the time of decision, and for a substantial period immediately prior to those dates, substantially reliant on the review applicant for financial support to meet her basic needs for food, clothing and shelter. It further finds that the visa applicant’s reliance on the review applicant was greater than any reliance by her on any other person, or source of support, for financial support to meet her basic needs for food, clothing and shelter. The Tribunal decided that the visa applicant does not meet the definition of dependent, as defined in r.1.05A of the Regulations.
In his evidence to the Tribunal the review applicant was emphatic about the role his mother plays in his life and in his family’s life. He said as the only son it is his responsibility to look after his parents and said he suffers at work because he thinks about his mother alone in Pakistan. He said his daughters miss their grandmother and spoke of how his wife missed his mother during the birth of their son earlier this year. The review applicant said his family is not complete without his mother.
The Tribunal does not dismiss the review applicant’s emotional distress caused by his mother remaining in Pakistan alone and that Ms Noreen and his daughters miss the visa applicant. However, as stated at hearing, the legal test does not involve emotional factors and it is confined to financial support.
The applicant’s representative submitted that the visa applicant meets the criteria for a parent visa and refusing the current application will only delay the eventual permission she will be given to reside in Australia.
There is no discretion in the legislation which would allow the Tribunal to make a finding that the visa applicant was a dependent of Ms Noreen at the time of application or that she is a dependent of Ms Noreen at the time of decision.
Given the above findings, the Tribunal finds at the time of application the visa applicant was not dependent on Ms Noreen and therefore the requirement that she is dependent on the family head in r.1.12(1)(e)(iii) is not met.
For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.
Christine Kannis
Member

[2017] AATA 1239

17 July 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Jurisdiction

Statutory Construction

Natural Justice

Procedural Fairness