Kalam (Migration)

[2019] AATA 4154

Kalam (Migration) [2019] AATA 4154 (4 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Abul Kalam

VISA APPLICANTS:  Mr Mohammad Shahjahan

CASE NUMBER:  1719126

DIBP REFERENCE(S):  OSF2012/025569 OSF2013/018353

MEMBER:Helena Claringbold

DATE:4 September 2019

PLACE OF DECISION:  Sydney

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

STATEMENT MADE ON 04 SEPTEMBER 2019 AT 11:04AM

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – secondary visa applicant not member of family unit of primary applicant or her spouse – secondary visa applicant not reliant on mother and father for financial support to meet basic needs for food and clothing – employed – running business – independent – inconsistent evidence – lack of evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 359A
Migration Regulations 1994 (Cth), rr 1.03, 1.05A,1.12, Schedule 2, cls 309.311, 309.321

CASES
Huynh v MIMA [2006] FCAFC 122

statement of decision and reasons

APPLICATION FOR REVIEW

1. On 11 April 2012, Mr Mohammad Shahjahan (the secondary visa applicant) applied for a Partner (Provisional) (Class UF) visa.  The application was made on the basis that he is a member of the family unit of his mother, Mrs Noor Nahar Begum, the primary visa applicant. Mr Abul Kalam, the sponsor and the review applicant, is an Australian citizen.  He is the spouse of Mrs Begum and the father of the secondary visa applicant.

2. On 8 August 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the secondary visa applicant is dependent on his mother, Mrs Begum or her spouse. Therefore, the delegate found that the secondary visa applicant did not meet cl.309.321 of Schedule 2 to the Migration Regulations made under the Migration Act 1958 (the Act).

3. On 1 July 2019, the sponsor appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the secondary visa applicant and Mrs Begum, witness Mairi and witness Natalie. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration the evidence in the Departmental of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the oral evidence given at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether, at the time of decision, the secondary visa applicant is a member of the family unit of the primary secondary visa applicant (his mother) or her spouse (his father) and whether at that time, he is dependent on his mother or her spouse.

   BACKGROUND ON THE EVIDENCE

7. The sponsor was born in 1959 in Chittagong, Bangladesh. In August 1982, he married Mrs Begum. There are three children from this marriage: Mr Mohammad Shahjahan, Mr Mohammad Shakawath Hossen and Ms Nilufar Yesmin, who were born in 1984, 1989 and 1994 respectively. In October 2005, the sponsor entered Australia as the holder of a transit visa, followed by a crew travel authority visa in November 2005. In September 2011, he was granted a permanent visa. On 21 June 2013, he became an Australian citizen by grant.

8. The secondary visa applicant was born in 1984 in Chittagong, Bangladesh. In the period of 1991 to 2001, he attended Mansha ML High School in Chittagong, Bangladesh. In March 2001, (aged 17 years), he successfully completed the S.S.C Examination of Board of Intermediate and Secondary Education. In the period of 2002 to 2003, he attended Patia Government College in Chittagong, Bangladesh for HSC Studies. In 2005, he stopped his studies.

9. On 11 April 2012, Mrs Begum lodged the application for the partner visa. The secondary visa applicant, together with his younger brother and his younger sister, were secondary visa applicants. In October 2012, Mrs Begum claimed that the secondary visa applicant was totally reliant on his parents and had not been able to find employment.

10. In August 2017, Mrs Begum, Mr Shakawath Hossen and Ms Yesmin were granted Partner Subclass 100 visas. In August 2017, Mr Mohammad Shahjahan was refused the partner visa. On 16 October 2017, Mrs Begum, Mr Shakawath Hossen and Ms Yesmin entered Australia.

    CLAIMS AND FINDINGS

11. At the time of application, the secondary visa applicant must satisfy clause cl.309.311 of Schedule 2 to the Migration Regulations 1994 (the Regulations), which determines that:

    The applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21.

12. At the time of decision, the secondary visa applicant must satisfy clause cl.309.321 of Schedule 2 to the Regulations, which determines that the secondary visa 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.

13. ‘Member of the family unit’ is defined in r.1.12 of the Regulations:

    (1)  For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:

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

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

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

    (e)  a relative of the family head or of a spouse or de facto partner of the family head who:

    (i)  does not have a spouse or de facto partner; and

    (ii)  is usually resident in the family head's household; and

    (iii)  is dependent on the family head.

14. ‘Dependent Child’ is defined in r.1.03 of the Regulations

    ‘dependent child’, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

    (a)  has not turned 18; or

    (b)  has turned 18 and:

    (i)  is dependent on that person; or

    (ii)  is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

15. ‘Dependent’ is defined in r.1.05A of the Regulations

    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.

16. There is no information before the Tribunal that the secondary visa applicant, who was born in 1984, is not the child of the primary visa applicant.

17. There is no evidence before the Tribunal that the secondary visa applicant is incapacitated for work due to the total or partial loss of his bodily or mental function. Therefore, the secondary visa applicant does not meet subparagraph (b)(ii) of the definition of dependent child in r.1.03(b)(ii).

    Is the secondary visa applicant dependent?

18. The term ‘dependent’ is defined in r.1.05A. It requires that at the relevant time, and for a substantial period immediately before that time, the person who is claiming to be dependent (the ‘first person’) must be wholly or substantially reliant on the other person for financial support to meet their basic needs for food, clothing and shelter. Further, the first person’s reliance on the other person must be greater than their reliance on any other person or source of financial support to meet those basic needs: r.1.05A(1)(a)(i) and (ii). Alternatively, the first person must be wholly or substantially reliant on the other person for financial support because they are incapacitated for work due to the total or partial loss of their bodily or mental functions: r.1.05A(1)(b).

19. Relevantly, the terms of r.1.05A(1) do not carry with them any implication of necessity or lack of choice. The question is whether as a matter of fact, the first person is relying on the other person for support: Huynh v MIMA [2006] FCAFC 122 at [44].

20. On 11 April 2012, the primary visa applicant lodged the visa application.  At that time the secondary visa applicant was 28 years old and as such had turned 18.  Therefore, he needed to meet the definition of ‘member of the family unit’ and ‘dependent’ according to Regulation r.1.12 and Regulation r.1.05A. 

21. Therefore, the secondary visa applicant is required to demonstrate that for a substantial period, immediately before the time of decision, he had been wholly or substantially reliant on his visa-holding parent or her spouse for financial support to meet his basic needs for food, clothing and shelter. In addition, the secondary visa applicant’s reliance on the primary visa applicant or her spouse for his financial support must be greater than his reliance on any other person or source for financial support to meet his basic needs for food, clothing and shelter.

22. On 3 June 2019, the Tribunal wrote to the sponsor under s.359A of the Act and invited him to comment on or respond to the following information:

    ·In October 2012, Mrs. Noor Nahar Begum, the primary visa applicant, claimed that Mr. Mohammad Shahjahan, the secondary visa applicant was totally reliant on his parents and had not been able to find employment.

    ·On 25 February 2016, officers from the Department of Immigration and Border Protection, visited the residence of the secondary visa applicant and were advised by his younger brother that, the secondary visa applicant was running a shop. A subsequent visit was made to a business called AS Traders. Departmental officers located the secondary visa applicant working at AS Traders and noted that, the secondary visa applicant was the only employee present. The secondary visa applicant participated in an interview with the officers, who recorded that, the secondary visa applicant provided the following information to them.

    ·He was looking after the shop and had done so for approximately five years.

    ·He attended the shop from early morning to 11:00 am, and then returned to run the shop from 2:00 pm to 7:00 pm.

    ·He invested TK2000000 to TK25000000 in the business.

    ·He was able to withdraw money from the business whenever he needed it.

    ·He completed his studies in 2005 and had not studied since that time.

    ·At the time the site visit to AS Traders took place, two million Bangladeshi Taka had a value of approximately US$25,000. This represented a significant investment in the business and commitment by the secondary visa applicant to the enterprise. It also contradicted information provided by Mrs. Noor Nahar Begum, the primary visa applicant, that the secondary visa applicant was unemployed. On 8 August 2017, the delegate found that at that at the time of the site visit, the secondary visa applicant was employed full time in the business, AS Traders.

    ·As a result of the above information, adverse findings were made about the secondary visa applicant’s employment. The delegate found that the secondary visa applicant was employed full-time and not dependent on the primary visa applicant or her spouse as was claimed.

23. On 17 June 2019, the sponsor’s migration agent responded to the invitation to comment on or respond to information.  The migration agent stated the following: the secondary visa applicant claimed to be dependent on the primary applicant and her spouse. The information about the site visit was inconsistent and untrue. He did not invest ‘BDT2,000,000 to BDT2,500,000’ in his uncle’s business. He disputed the fact that his uncle’s business is relatively small.  He goes to his uncle’s shop to mind it if his uncle needs to go out and do other things and he did not receive any payment. He has never earned any income and relies on his parents for financial support. The sponsor’s migration agent provided information including the following:

    ·An undated statement from the primary visa applicant and the sponsor who stated the following:  the secondary visa applicant is living in their home with Mr Abu Mohammed (Abu), the sponsor’s brother and his wife and children. Abu operates a small male wedding clothing hire business and a small transporting and services business. The secondary visa applicant was not good at school and could not find work. Abu thought that the secondary visa applicant could be useful minding the shop while he did other business, shopping and chores. The sponsor was away from home for many months at a time and the secondary visa applicant looked after his mother, brother and sister, as well as helping with Abu’s shop. During this time, the secondary visa applicant went missing from home.  When he returned he was emotional and unsettled.  He has never discussed what happened to him. The secondary visa applicant could be described as anxious and a bit nervous if in an unfamiliar situation. When the secondary visa applicant was interviewed he would have been extremely nervous and anxious. He was not expecting the Departmental offices and would have been unprepared.  He was also alone in the shop and that would have made the situation worse. The secondary visa applicant has told them that he didn’t say that he invested two million in his uncle’s shop; the shop is small and has a hire business and each set of men’s’ clothing rents out for 500 to 700 Takas. The secondary visa applicant does not have money and many times they have sent money to help with his living costs. In May 2016, the primary visa applicant stated that the sponsor supported the family and the sponsor stated that he sends $700 a month to support the family.  The primary visa applicant and the sponsor also provided the same information as detailed above about the visa applicant’s role in Abu’s shop.

    ·In statements dated 16 June 2019 and September 2017, in which the secondary visa applicant stated the following: his father sent money to support the family and he is dependent on his father. He does not have a job but maintains ‘family affairs’.  His family and his uncle’s family live together. A.S. Traders is owned by his uncle and he maintains the business. When his uncle wants to go to Chittagong City or any place for his affairs or, for his shop, sometimes he will call the secondary visa applicant to stay in the shop. He has not invested any money in his uncle’s business. His uncle has rented the shop for a long time as a commercial business but the secondary visa applicant does not receive any payment for his service.  The goods in the shop are marriage dresses called ‘Shirowani’, valued at ‘BDT3,000 to BDT5,000’ each and (the shop) has a stock of 30 to 40 of the marriage dresses at a maximum. The total value of the ‘Shirowani’ does not total the investment ‘the two persons said that I have invested in the shop’. The statement that he was ‘conducting that shop’ from 7:00 am to 2:00pm up to 5:00pm is totally false and fraudulent. The statement the ‘guest’ delivered is ‘per their own idea’ or in the absence of proper information. Their statement is false and incorrect. The secondary visa applicant told the Tribunal that he is unemployed and has been waiting to go to Australia.  He said that he has no investment in the shop and the business belongs to his uncle. He claimed that the information (about the site visit) is all lies and he didn’t take any money (from the business). He stated that he was probably not in the right mood (for the Departmental site visit and interview) and not familiar with the procedure.  He stated that he is not married, has never been married or engaged and is not in a relationship.

    ·A statement dated 16 June 2019, in which Abu stated that the secondary visa applicant has no investment or partnership in the shop.  He was in the shop when Abu was absent and he didn’t receive any payment.

    ·A statement dated 16 June 2019, in which Md Younus stated that he lives in the same village at the secondary visa applicant and they are friends from childhood. The secondary visa applicant’s father has been supporting the secondary visa applicant and his siblings and his mother financially. He passes his time with the secondary visa applicant. ‘He has no any time to serving in any where’ and he did not earn any money.

    ·Statutory declarations dated May 2016 and June 2019, in which Mairi stated that she met the sponsor when he was in Villawood Immigration Detention Centre in 2006.  She has remained friends with him since that time and his family live in a house that she owns. She visited Mansha in Bangladesh in 2008 and spent a few days with the primary visa applicant and her children and the sponsor’s brother Abu, his wife and two children. Each time she goes to Bangladesh she visits them and knows them well. The secondary visa applicant was not successful at school or at finding a job. His uncle, who owned a small shop which hired out men’s wedding clothing, suggested that the secondary visa applicant mind the shop when he left to do business or other family shopping. She visited the shop on at least two occasions and on each occasion the secondary visa applicant was in the shop and his uncle was out. There were no customers and very little stock available. Most of the business is done in the ‘wedding season’ during the warmer months. She discussed the (Departmental) interview with the secondary applicant with the sponsor and primary visa applicant, who assure her that the secondary visa applicant has never received payment from his uncle and has never had any money and certainly not TK 2 million to invest. She knows that the sponsor still sends money to the secondary visa applicant and to Abu who often needs money. Mairi told the Tribunal that when she visited the shop it had two to three wedding outfits for hire. She believes that the income from the shop would not be enough to provide a salary to the secondary visa applicant and his uncle. She stated in Bangladesh families help each other and no money changes hands. She told the Tribunal that she found the sponsor and his family to be honest and trustworthy and are a respectful loving family.

    ·A statutory declaration dated May 2016, in which Natalie stated that she met the sponsor when he was in Villawood Immigration Detention Centre and she is a friend of the primary visa applicant.  She visited and stayed with the primary visa applicant and her family in Patiya in 2008 and many times after that year, with her last visit being in 2015.  She got to know the family well.  The secondary visa applicant did not finish the HSC and was spending time at home. The secondary visa applicant assists his uncle. However she is sure he does not receive payment.  She knows that the sponsor is the sole financial supporter for the family. Natalie provided the same information at the Tribunal hearing.  In addition she told the Tribunal that the last time she visited the secondary visa applicant, which she thought was in about 2016, the secondary visa applicant took her to the shop where his uncle was working.

    ·A statutory declaration dated February 2012, in which Mohammed Ali stated that the sponsor works hard to financially provide for the primary visa applicant and their children.

    ·Various copies of translated documents, have been provided and including the following: a document dated 28 April 2011 titled ‘Income Tax Certificate’. It recorded the taxpayer as Abu Mohammed, with a permanent address/registered office of Shahab Meah Sukanir Bari East Mansha P.P. Mansha, P.S. Patiya Dist Chittagong, and a present address of M/S:  A.S. Traders Bhai Bhai Market, Santir Hat, Patiya, Chittagong, Chowdbury Plaza, Patenga, Chittagong and with an individual status and tax payer Identification no. (TIN): 379-110-1687/Salary 5.  The translator recorded the Sd/illegible.

    ·A document issued on 20 February 2014, with validity to 30 June 2014 and titled Kusumpura Union Prasad, Patiya, Chittagong, ‘Trade Licence’.  Information recorded on the document is as follows: the owner’s name is Abu Mohammed and the nature of the business is M/S A.S. Traders with an address of Mir Supermarket, Santir Hat, Patiya, Chittagong and the nature of business is car rental. The document is claimed to have been signed by the Secretary Collector and Chairman. The names of the Secretary Collector and chairman have not been provided and the translator recorded that the signature of the Secretary and Chairman are Sd/illegible.

    ·A document executed on 1 April 2016 for five years and titled ‘Temporary Lease Agreement of the Shop’, which recorded a monthly temporary lease agreement for a ‘shop house’ No 1 in east line of Bhai Bhai Market in Santir Hat Market of 06 Kusumpura Union, between the Md Amran and Md Forkan and Haji Abu Mohammed, with a monthly rent of TK4,500. The document lists three witnesses.  The document is unsigned by the landlord, tenant and witnesses and no identification has been provided for the landlord and witnesses. Nor has an untranslated copy of the original document been provided. The lease agreement was executed after the Department’s site visit on 25 February 2016.

    ·A document dated January 2017 and titled ‘Taxpayer’s Identification Number (TIN) Certificate’ recorded the taxpayer’s particulars as Abu Mohammed with a current address of Shahab Meah Shokiner Bari, Monsha, Patiya, Chittagong and permanent address as M/s A.S. Traders vai vai Market Shanterhat Patiya. It recorded that a previous TIN was not applicable and the status was individual. An original untranslated copy of the document has not been provided and no identification has been provided for the issuing entity. The document does not provide any details of the translator. The certificate is dated after the Department’s site visit on 25 February 2016 and after the primary visa applicant was invited to comment on the information relating to the site visit.  

    ·Ad hoc documents which record the following information: temporary house rent receipts from January to December 2016 and January to August 2017.  The landlord is recorded as being Mohammad Amran. The tenant is Haji Abu Ahmed. The monthly rent is TK4,500. No rental address is recorded on the receipts. The translator recorded that the signature of the owner or authorised person is illegible and no identification has been provided for the person issuing the receipts. The receipts are dated after the Department’s site visit and after the primary visa applicant was invited to comment on the information relating to the site visit.

    ·Ad hoc documents which record the following information: temporary house/shop rent receipts for January to August 2018 and from January to April 2019. The document records that they are for Mouza: Kusumpura, Police Station Patiya, District: Chittagong. The proprietor is recorded as MD Emran. The tenant is recorded as Abu Mohammed.  The translator recorded that the signature of the owner/representative is Sd/illegible and no identification has been provided for the owner/representative or the person issuing the receipts. The receipts are dated after the Department’s site visit and after the primary visa applicant was invited to comment on the information relating to the site visit.

    ·Other documents which include the following: a copy of a bank statement from December 2010 to 6 November 2012 for account ending 8502 in the account title of Nur Naher Begum. It records various deposits and cash withdrawals. There is no identification of who made these deposits or withdrawals.  

    ·Copies of receipts for money sent from the sponsor to Mr Mohammed Shajahan and Md Shajahan, the secondary visa applicant have been provided.  These record amounts sent in: 2016, in June an amount of $1,000 and an amount of $609.76 and in August an amount of $1,785 and in December an amount of $519.39. In 2017, an amount of $163.13. In 2018, January an amount of $305.34, May an amount of $806.45 and an amount of $815.00, and July an amount of $489.40. In 2019 in May an amount of  $467.13 and an amount of $771.87. There is no evidence of any money transfers from the primary visa applicant or the sponsor to the secondary visa applicant, from 11 April 2012, when the partner visa applications were lodged until June 2016, which is after the Department’s site visit and after the primary visa applicant was invited to comment on the findings of the site visit. 

    ·Copies of receipts for money sent from the sponsor to Mr Abu Muhammed relate to: one transaction in July 2011 and one in 2018 in September for $506.76. Transactions in 2019: in April for $844.59 and in May for $433.65. There is no evidence of any money transfers from the primary visa applicant or the sponsor to Mr Abu Muhammed, from 11 April 2012, when the partner visa applications were lodged until September 2018, which is after the Department’s site visit and after the primary visa applicant was invited to comment on the findings of the site visit.

    ·Copies of receipts for money sent from the sponsor to the primary visa applicant are as follows: in 2009, in May $2,000. In 2010, in January $1,000, in September $4,987, in October $2,987 and in December $2,987. In 2011, in July $1,434,55 and in October $2,088. These transactions took place prior to the lodgement of the partner visa applications.  There are also copies of receipts for money sent in 2016, in May $1,798.56. In 2017, in April $488. There is no evidence of any money transfers from the sponsor to the primary visa applicant from 11 April 2012, when the partner visa applications were lodged until May 2016, which is after the Department’s site visit and after the primary visa applicant was invited to comment on the findings of the site visit.

    ·A copy of a remittance application dated August 2008, for TK 40,250 from the sponsor to the primary visa applicant. There is no evidence that this money was transmitted.

1. The Tribunal put information to the sponsor under s.359AA of the Act as follows:

   ·On 25 February 2016, Departmental officers visited the village where the secondary visa applicant lives. On 18 April 2016, the primary visa applicant was invited to comment on information resulting from the site visit. Most of the information about the site visit was put to the sponsor by the Tribunal under s.359A of the Act. 

   ·Other information which is on the Department’s file and taken from the site visit record is that on 25 February 2016, locals of the visa applicant’s village told the Departmental officers that the secondary visa applicant is a businessman and he runs a shop at Shantirhat, Patiya and that he had been running the shop for the last 10 years.

   ·When Departmental officers visited Shantirhat Bazaar at 9:22 am on 25 February 2016, local shopkeepers stated that the secondary visa applicant runs the car rental and wedding supplies rental shop.

   ·The secondary visa applicant told Departmental officers that he passed his HSC in 2005 and did not continue study after that. When asked what he did after 2005, he stated that he became involved in business and had been associated with the shop for the last five years.  He stated that the A.S. Traders business ownership documents are in his uncle’s name, Mr Haji Abu Mohammed but he is a shareholder of the business. They rent wedding supplies and cars and own two cars.

   ·On 23 February 2010, in a statement to the Tribunal differently constituted, Mairi stated that 12 years prior the sponsor sent money home for the family to purchase a shop which they still owned and ran. She stated that 10 year prior the family had enough money to invest in a van and the sponsor’s brother continued to have the van and delivery business.

2. The sponsor responded at the Tribunal hearing and stated that he does not know what they (Departmental officers) asked the secondary visa applicant. His brother runs the shop and there is nothing in the secondary visa applicant’s name. His brother is not an early riser and the secondary visa applicant opens the shop.  When his brother goes to the shop the secondary visa applicant returns home.  The secondary visa applicant is unemployed.

3. Other information was also put to the sponsor under s.359AA of the Act as follows:

   ·The secondary visa applicant told the Tribunal that from 11 April 2012 to June 2016 he was supported financially by his father. When the Tribunal told the secondary visa applicant that it did not have any independent evidence to support this claim, he stated that he does not pay rent and during that time his uncle lent him money for food and clothing. His uncle gave him TK 700 to TK1, 000 monthly. The Tribunal then referred to the secondary visa applicant’s evidence that his food cost TK3,000 to TK5,000 monthly and his clothing cost him TK 3,000 to TK5,000 six monthly. The Tribunal asked the secondary visa applicant how he covered his expenses with the amount of money his uncle provided him.  The secondary visa applicant then stated that when he needed more money his uncle provided the money for him.  He claimed that the sponsor sent money to his uncle, who provided the secondary visa applicant with the money. When the Tribunal told the secondary visa applicant that it did not have any independent evidence to support this claim, he stated that there are other ways of sending money, including through other people and the hundi system. This information was put to the sponsor because it was inconsistent with his evidence that he financially supported the secondary visa applicant.

4. The sponsor responded at the Tribunal hearing and stated that from 11 April 2012 to June 2016 he sent money to the secondary visa applicant. The secondary visa applicant lives in his flat and does not pay rent. He responded to the information put to him and stated that he sometimes sent a large sum of money through a friend or friends. The secondary visa applicant’s uncle didn’t support him financially and the secondary visa applicant is dependent on the sponsor.

5. The Tribunal is surprised that the claim of the sponsor sending money to the secondary visa applicant with other people or means including, the hundi system, was only raised at the Tribunal hearing after the Tribunal told the secondary visa applicant about the lack of evidence to substantiate his claim of being financially supported by the sponsor. The claim of sending money by this alternate method was not previously mentioned in any of the information provided to the Department and Tribunal prior to the Tribunal hearing. As there is no independent evidence before the Tribunal to substantiate the claim of money being sent from the sponsor to the secondary visa applicant by this alternate method, the Tribunal does not accept that this is the case.

6. Copies of receipts for money sent from the sponsor are as follows: money sent to the secondary visa applicant beginning from June 2016. Money sent to the primary visa applicant stops in October 2011 and begins again in May 2016. Money sent to Mr Abu Muhammed includes one transaction in July 2011 and the remainder is sent from September 2018. With the exception of the money sent to the primary visa applicant up to October 2011 and the one money transaction to Abu in 2011, all of the receipts record money sent from the sponsor to the recipients after the Department’s site visit on 25 February 2016 and after 18 April 2016, when the primary visa applicant was invited to comment on the information relating to the site visit and the visa applicant’s involvement in A.S. Traders. The Tribunal’s view is that the secondary visa applicant and the sponsor fabricated their responses to the Tribunal. It considered the money sent from the sponsor in 2011 to the primary visa applicant and Abu, however there is no independent evidence about what this money was used for. The Tribunal considered that the money transactions in 2016 were created in order to provide evidence for the secondary visa applicant to meet the requirements for the grant of the visa.  The Tribunal is not satisfied that the sponsor and the secondary visa applicant are credible.

7. The Tribunal does not accept that the temporary lease agreement of the shop and an income tax certificate (in January 2017) and a Taxpayer’s identification Number (TIN) certificate and other receipts issued in the name of Mr Abu Mohammed supports that, for a substantial period immediately before the time of decision, the secondary visa applicant was financially supported by the primary visa applicant or the sponsor. These documents were issued after the Department’s site visit in 2016 and no identification has been provided about the issuing entity.  

8. The trade licence’ issued on 20 February 2014, with validity to 30 June 2014 in the name of Mr Abu Mohammed, appears to be issued in the name of M/S A.S. Traders for the car rental business. The names of the Secretary Collector and Chairman have not been provided and the translator recorded that the signature of the Secretary and Chairman are Sd/illegible and no identification information has been provided about the issuing entity. The income tax certificate dated 28 April 2011 issued in the name of Mr Abu Mohammed has been provided without any identification of the issuing entity.  

9. The Tribunal accepts that the secondary visa applicant may not have expected a visit from the Department and may have been extremely nervous and anxious and unprepared. However it is unclear to the Tribunal what preparation would be necessary for a Departmental visit. The Tribunal does not accept that the information recorded by the Departmental officers is lies. The Tribunal does not consider it plausible that the information in the report provided by the Departmental officers, on their site visit to the visa applicant’s village, is incorrect. The Tribunal is of the view that, the information recorded as being provided by the secondary visa applicant, about his involvement in A.S. Traders including that he had looked after the shop for at least five years, that he attended the shop from early morning to 11:00 am and returned from 2:00 pm to 6:00 pm and that he had invested TK 2 Million to TK 2.5 Million in the business and could withdraw money from the business as he needed it, to be detailed and exact and to reflect his circumstances. The Tribunal may accept that the secondary visa applicant was not good at school.

10. The Tribunal considered the claims by the primary visa applicant and the sponsor about the secondary visa applicant that the sponsor was away from home for many months at a time and the secondary visa applicant looked after his mother, brother and sister, as well as helping with Abu’s shop.  It considered the claims that during that time the secondary visa applicant went missing from home and on his return was emotional and unsettled. The Tribunal notes that the sponsor entered Australia in 2005 and it has not been provided any independent information to support the claim of the secondary visa applicant being missing from home or how these circumstances would reflect on the site visit that took place in 2016. It does not accept that the secondary visa applicant could not find work, or the claims made by the sponsor, the primary visa applicant and the secondary visa applicant, that the secondary visa applicant attended the shop when his uncle needed to attend to other matters and he did not receive any payment, because, if that were the case the secondary visa applicant would have given that information to the Departmental officers regardless of how nervous, anxious and unprepared he was. Other evidence supports the information recorded by Departmental officers, that is the evidence provided by the secondary visa applicant’s younger brother is that the secondary visa applicant was running a shop and information provided by local villagers and local shop owners is that the secondary visa applicant had been running the business for 10 years. The independent evidence that has been provided about the sponsor sending money to the secondary visa applicant are dated from 2016, which is after the site visit and after the primary visa applicant was invited to comment on the information from the site visit.  However, no substantive information has been provided about what the money has been used for.

11. The primary visa applicant told the Tribunal that the secondary visa applicant is in Bangladesh with his uncle. The secondary visa applicant does not do anything. When ‘we’ send money he supports himself financially and no one else supports him financially. She would like the secondary visa applicant to come to Australia. The sponsor’s migration agent stated that when considering the size of the business an investment of TK 2 Million to TK 5 Million, does not ‘add up’. And the applicant’s and witness have given evidence about the secondary visa applicant’s dependency.

12. During the Tribunal hearing, the sponsor stated that he had other receipts for money transactions. The Tribunal provided the sponsor additional time to provide this additional information. In a post Tribunal hearing submission, the sponsor stated the following: he is attaching copies of invoices certifying that he sent money to the primary visa applicant and to his brother Abu Mohammed.  The money was for the primary visa applicant and for his family. He is the sole financial provider for them prior to the primary visa applicant coming to Australia.  The other money was sent to his brother to be used by him to help with his business and also to help his family. He provided an account statement dated 1 January 2010 to 31 December 2016 with a last transaction date of 9 August 2017 and a reporting date of 2 July 2019.  The statement claims to be from the Islam Bank Bangladesh Limited and records the account number ending 8502 and the account title as Noor Naher Begum, which is inconsistent with the spelling of Nur Naher Begum on a previous statement for account ending 8502. The statement recorded numerous unidentifiable withdrawals and deposits. Copies of money transfers from the sponsor to the primary visa applicant are dated 14 May 2016, 31 May 2016 and 13 April 2017 and a copy of a transfer to Mr Abu Mohammed is dated July 2011.

13. The Tribunal considered the witnesses’ statements. It is of the view that their opinion has been established by infrequent visits to the family in Bangladesh and through the information provided to them by the sponsor and his family.  It is not satisfied that the information provided by the witnesses outweighs the information given by the secondary visa applicant to Departmental officers about his involvement in the business and the information given by the secondary visa applicant’s brother and locals of his village and local shopkeepers of his involvement in the business and the inconsistent information he provided the Tribunal about the financial support he received from his uncle. The secondary visa applicant initially told the Tribunal that he was financially supported by his father. He then stated that he didn’t pay rent and his uncle lent him money for food and clothing and when he needed more money his uncle provided him with the money. He then claimed that the sponsor sent the money to his uncle who then gave it to him.  When the Tribunal stated that it didn’t have independent evidence of this, he stated that money was sent via the hundi system.

    Other considerations

14. In putting information to the sponsor under s.359AA of the Act, the sponsor was told that the Tribunal was putting to him information that would be the reason or part of the reason for affirming the decision. He was told the relevance and consequences of the information and invited to comment on or respond to the information. The sponsor was advised that he could seek additional time to comment on or respond to the information. The sponsor requested and was granted additional time to comment on or respond to the information.

15. Ultimately, the evidence provided about the secondary visa applicant’s being financially supported by the sponsor or the primary visa applicant is related to after the site visit and after the primary visa applicant was invited to comment on the findings of the site visit. The Tribunal, on balance, considers that the information provided by the secondary visa applicant during the site visit is correct. The information recorded by Departmental officers as given by the secondary visa applicant about his involvement in the business was supported by the information provided by his younger brother, who stated that he was running a shop and by information provided by locals in the secondary visa applicant’s village, who stated that he is a businessman and had run a shop for the last 10 years and by information provided by local shopkeepers who stated that he runs a car rental and wedding supplies rental shop. The Tribunal accepts that the sponsor remitted money to the secondary visa applicant from June 2016 and that the secondary visa applicant lives in the sponsor’s flat and does not pay rent.  It does not accept that the money sent from June 2016 was to meet the secondary visa applicant’s basic needs for food and clothing. It is of the view that, the money transactions took place to assist the secondary visa applicant meet the criteria for the grant of the visa.

16. The Tribunal does not accept the sponsor’s, the primary visa applicant’s and secondary visa applicant’s claims that the secondary visa applicant has never worked or received payment for work because they have not provided any independent evidence to substantiate their claims. Significantly, the secondary visa applicant told the Tribunal that from the date of the visa application up until 2016, Abu provided money to finance the provision of his food and clothing. The Tribunal is of the view that the sponsor and the secondary visa applicant have displayed an ability to change their evidence when they realised it could be beneficial for them. This led the Tribunal to be satisfied overall that the evidence provided in the site report about the secondary visa applicant working and investing in the business and being financially independent and the information provided by his brother and local villagers and shopkeepers to reflect the secondary visa applicant’s circumstances. 

17. The sponsor and primary visa applicant and the secondary visa applicant, failed to satisfy the Tribunal that the secondary visa applicant is dependent on the primary visa applicant or her spouse at the relevant time, because they have been unable to corroborate their claims from any independent source or provide consistent information about their circumstances. The secondary visa provided inconsistent information about who provided him with financial support from April 2012 to June 2016.  On one hand he claimed to be financially supported by his father.  On the other hand, when the Tribunal challenged his evidence, he provided another version of his circumstances to the Tribunal and stated that Abu, his uncle, lent him money and if he needed more money Abu provided this to him but it was from money sent by the sponsor. When asked about evidence to support his claim he stated that money was sent by other means including the hundi system. This led the Tribunal not to be satisfied about the secondary visa applicant’s credibility. The evidence about money being sent to the secondary visa applicant after June 2016 is after the site visit and after the primary visa applicant was invited to comment. The Tribunal is of the view that this evidence has been provided to support the secondary visa applicant’s application for the visa.

18. While the Tribunal may accept that the secondary visa applicant lives in the sponsor’s home and does not pay rent. The Tribunal is not satisfied that for a substantial period immediately before the time of decision and at the time of decision, the secondary visa applicant was ‘wholly or substantially’ reliant on the primary visa applicant or her spouse, for financial support to meet his basic needs for food and clothing. The Tribunal is not satisfied that the secondary visa applicant’s reliance on the primary visa applicant or her spouse is greater than his reliance on any other person or source of financial support to meet those basic needs.

19. As a result, the Tribunal is not satisfied that, for a substantial period immediately before the time of decision and at the time of decision, the secondary visa applicant was a member of the family unit of the primary visa applicant or her spouse. Therefore, the visa secondary visa applicant does not satisfy cl.309.321of Schedule 2 to the Regulations.

20. There is no evidence that the secondary visa applicant meets any of the alternative criteria for the grant of the visa.

21. Having considered the evidence individually and as a whole, the Tribunal is not satisfied that the secondary visa applicant meet the criteria for the grant of the visa.

    DECISION

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

    Helena Claringbold
    Member