KAZEMI (Migration)
[2021] AATA 4107
•22 October 2021
KAZEMI (Migration) [2021] AATA 4107 (22 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Mr Sayed Alamshah KAZEMI
VISA APPLICANTS: Mr Sayed Sardar KAZEMI
Mr Sayed Mustafa KAZEMICASE NUMBER: 1832261
DIBP REFERENCE(S): 2013/022836 OSF2013/022836
MEMBER:John Longo
DATE:22 October 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl 309.311 of Schedule 2 to the Regulations
·cl 309.321 of Schedule 2 to the Regulations
Statement made on 22 October 2021 at 9:33am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – member of the family unit – wholly or significantly financially reliant upon the primary visa applicant – adopted children of the sponsor – money transfers – family head – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 309.221, 309.311, 309.321; rr 1.05, 1.12CASES
Al Naqi v Minister for lmmigration and Citizenship & Anor [2007] FMCA 874
Fusi v MIAC [2012] FMCA 1037
Huang v MIMA [2007] FMCA 720
Huynh v MIMA [2006] FCAFC 122STATEMENT 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 10 September 2018 to refuse to grant the secondary visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (the Act).
The primary visa applicant applied for the visa on 30 June 2013 on the basis of her relationship with the sponsor, the review 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 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.
The delegate refused to grant the secondary visa applicants the visas on the basis that they did not satisfy cl 309.311 because the delegate was not satisfied that the secondary visa applicants were wholly or significantly financially reliant upon the primary visa applicant. In cumulative consideration of the above information, they were not satisfied the visa applicants are ‘members of the family unit’ of the primary visa applicant and did not satisfy the criteria set out in reg 309.311.
The review applicant appeared before the Tribunal on 4 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Bibi Rukhshana Kazemi, who is the review applicant’s partner (and the primary visa applicant). The Tribunal exercised its discretion to hold the hearing by telephone hearing. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
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 matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
As it is apparent from identification documents and other evidence that the secondary visa applicants are the nephews of the sponsor and are normally resident in the primary visa applicant’s household of which is she is head, the issue in the present case is whether the visa applicants were and are dependent on the family head as defined in reg 1.05A.
Clause 309.311 requires a secondary visa applicant to be a member of the family unit of the primary visa applicant at the time of application. Clause 309.321 requires a secondary visa applicant to continue to be a member of the family unit at the time of decision. Regulation 1.12(1) defines ‘member of the family unit’ and reg 1.05A(1) defines ‘dependent’.
In assessing whether the secondary visa applicant meets the definition of a member of the family unit of the primary visa applicant as required in cl 309.311, the secondary visa applicant must be 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
The delegate noted that:
·The secondary visa applicants are claimed to be the sponsor’s nephews. It is therefore acknowledged that the claimed familial relationships fall under the definition of relative as set out in the reg 1.12(1)(e).
·It is further claimed that the secondary visa applicants lived with and are dependent on the primary visa applicant under the meaning of the Regulations.
·The secondary visa applicants declared to never have been married or been in a de facto relationship and that their dependence on the primary visa applicant has been in existence for a substantial period immediately before the lodgement of the application.
·The primary visa applicant had declared on departmental forms for this application that she has never been employed. It is further consistently claimed that the primary visa applicant is also financially reliant on the sponsor for all of her and the secondary visa applicants’ daily needs.
·On 21 January 2018 and 15 March 2018, the secondary visa applicants were afforded opportunities to provide evidence of their dependency to the primary visa applicant. However, the secondary visa applicants only provided a Form 80 and photographs in response to this request. No other relevant information was received in relation to their dependency claims.
·The delegate noted there was no information before them to demonstrate that financial support has been at any stage provided by the primary visa applicant to the secondary visa applicants and gave significant weight to the evidence provided by the sponsor indicating that he was financially supporting the primary applicant since he arrived in Australia.
The relevant familial relationships are as follows:
·Mr Sayed Sardar Kazemi, aged 27 – secondary applicant
·Mr Sayed Mustafa Kazemi, aged 26 – secondary applicant
(These applicants are adopted children of the sponsor)
·Mrs Bibi Rukhshana Kazemi, aged 37 – primary applicant
·Mr Sayed Alamshah Kazemi, aged 59 – sponsor
(The sponsor is married to Mrs Bibi Rukhshana Kazemi, the primary applicant)
The issue in the present case is whether the secondary visa applicants are wholly or substantially financially reliant upon the primary visa applicant.
CONSIDERATION OF CLAIMS AND EVIDENCE
In respect of the term ‘dependent’, the judgement in Huynh v MIMA [2006] FCAFC 122 establishes that the words of the Regulations do not carry any implication of necessity, and the question in considering the terms of reg 1.05A(1) is whether as a matter of fact the first person (the secondary applicant) is wholly or substantially reliant on the other person (the primary applicant) for financial support to the specified level to meet the basic needs specified in the definition. Both the expression ‘substantially reliant’, and reg 1.05A(1)(a)(ii) require consideration of the level of reliance a person has on another person in comparison with his or her reliance on other persons or sources of support. Courts have held that the term ‘substantially’ should be read as meaning ‘predominantly’ or ‘primarily, essentially or in the main’.[1] In addition to being ‘substantially reliant’ on an identified person, reg 1.05A(1)(a)(ii) requires that the first person’s reliance on the other person be greater than any reliance on any other person or source of support.
[1] Huang v MIMA [2007] FMCA 720 (Cameron FM, 16 May 2007) at [26]. See also Fusi v MIAC [2012] FMCA 1037 ( Nicholls FM, 15 November 2012).
The review applicant (sponsor), who was represented, gave evidence that when he came to Australia in 2010, he and his wife, Mrs Bibi Kazemi were already married. He stated that they had married in Afghanistan and then moved to Quetta in Pakistan. He moved to Australia and his wife and 11 children, four biological children and seven stepchildren, joined him in Australia in October 2018.
The review applicant stated that the secondary visa applicants are his brother’s children, who passed away, and they were adopted. The secondary visa applicants lived with Mrs Kazemi in Quetta together with the other children and often referred to them as their mother and father. Neither have been in any relationship, nor are they working or attending school. They were attending some English language classes. While they had remained in the same house when Mrs Kazemi and the other children came to Australia, they have subsequently moved to a new property as the property was too large and costly.
Mrs Kazemi met all the expenses while in Quetta, including food, accommodation and English classes. The review applicant stated that prior to coming to Australia, Mrs Kazemi would pay for their expenses as he had left her some money prior to coming to Australia. When he was in Australia, he started sending Mrs Kazemi additional funds to pay for her and the children’s expenses. The secondary visa applicants have been unable to undertake formal schooling. Since Mrs Kazemi came to Australia, they send money each month (between AUS$200 to AUS$700 per month – around 50,000 to 70,000 Pakistani rupees per month) to pay for their expenses. Mrs Kazemi confirmed that she provided for their expenses and costs, including English classes while in Quetta.
The Tribunal finds that the secondary visa applicants were being cared for by the primary visa applicant at the time of the visa application (June 2013). The review applicant (sponsor) said he provided towards the costs while they were in Pakistan. He stated that when he left Pakistan to come to Australia, his wife (the primary visa applicant) had some savings to provide for her care and for the children’s costs, including the secondary visa applicants, and was also sending funds from Australia. There are no receipts for the transfer of these funds on file. The review applicant (sponsor) and primary visa applicant stated that they continue to regularly send money for the secondary visa applicants’ expenses.
While there is no evidence of these transactions, the Tribunal accepts these transactions occurred and continue to occur. The Tribunal finds that the review applicant (sponsor) organised financial matters for his wife and children, including the secondary visa applicants. Given that Afghanistan is a more traditional society this is the more likely scenario, along with the fact that the applicant has been in Australia the longest and is more familiar with organising such matters in this country. The Tribunal also notes that the primary applicant at the time of application had some savings which they used to support herself and the children, including the secondary visa applicants.
The Tribunal also contemplates the dynamic between husband and wife here, and finds that to consider the review applicant (sponsor) as the sole breadwinner (he is not working in Australia but in receipt of income support payments) and thus the one who is funding the secondary visa applicants would be an artificial way of looking at the concept of dependency. The Tribunal rejects such an approach.
Questions to be resolved
Are the secondary applicants wholly or substantially financially reliant upon the primary applicant?
The Tribunal finds this to be the case. The primary applicant has supported the secondary visa applicants since prior to the application in June 2013. Her share of the income and assets of her couple relationship is directed to the secondary visa applicants, to the present, and her husband arranges this.
I do not have concerns about the secondary visa applicants’ claimed lack of independence in life. I accept that they are not working or studying, are single and have not been married or been in de facto relationships. Given minimal job opportunities, I conclude that they are reliant on others for financial support.
Who is the ‘family head’ in this case?
The relevant regulation is:
1.12 Member of the family unit
(1) a person is a member of the family unit of another person (in this sub regulation called the family head) the person is:
(a) a spouse of the family head; or
(b) a dependent child of the family head or of a spouse of the family head; or(c) a dependent child of a dependent child of the family head or of a spouse of the family head; or
(e) a relative of the family head or of a spouse of the family head who:
(i) has never married or is widowed, divorced or separated; and
(ii) is usually resident in the family head's household; and
(iii) is dependent on the family head.
The Tribunal finds that the family head in all reasonableness was effectively the primary applicant at the time of application and at present. While the husband may traditionally be viewed as a family head in many contexts, he was overseas at that time, not in the home in Quetta. The Tribunal also notes the evidence of the review applicant and the primary applicant that the secondary visa applicants viewed them as their mother and father.
The Procedural Advice Manual (PAM3) provides:
“If support is provided by one of a couple
It is provided that if policy is provided by one of the cohabiting couple, the financial support may be attributed to the couple even though only one may be in receipt of income.
For example, if the family head or sponsor is the mother, but only her spouse has an income, the person may still be considered to be reliant on the mother if that is a requirement for grant of the visa.”
And further:
“As a general rule if the sponsor would not continue to support the secondary applicants in circumstances where the sponsor was no longer in a relationship with the family head then it should be considered that the secondary applicants are dependent upon the family head. However, if the sponsor would continue to support the secondary applicants regardless of the sponsor’s relationship with the family head, then it should be considered that the secondary applicants are dependent on the sponsor (and not the family head).”
The Tribunal is guided by PAM3 and not bound to it. In this case it is reasonable that the Tribunal consider the primary applicant to be one of the cohabiting couple, yet the financial support may be attributed to the couple even though only one may be in receipt of income. In fact, the Tribunal goes further to say that provision of financial support is attributed to the primary applicant primarily as that is how she chooses to spend her notional portion of the family income – on the children including the secondary applicants. She has also had some savings, at the time the review applicant (sponsor) left for Australia, on the evidence of the parties and contributed these savings to the secondary visa applicants’ expenses at the time of application when she was in Quetta.
The delegate relied upon the observations of Riethmuller FM in Al Naqi v Minister for lmmigration and Citizenship & Anor [2007] FMCA 874 and drew similar comparisons with this application, to conclude that the secondary visa applicants were primarily and substantially reliant on the review applicant (sponsor) rather than the primary visa applicant. The Tribunal does not agree with these conclusions. The Tribunal finds that the secondary visa applicants were treated and considered, based on the evidence of the review applicant and the primary visa applicant at hearing, as their children and thus reliant on them in the same manner as the other children of the review applicant and the primary applicant.
Do the secondary applicants have spouses or de facto partners?
There is no evidence that they do, and consistent evidence from all concerned that they do not. The Tribunal accepts the secondary applicant was a member of the same household as the primary applicant. The Tribunal therefore finds reg 1.12(1)(e)(ii) is met.
On the basis of credible consistent oral and documentary evidence, the Tribunal accepts that the primary applicant has provided support to the secondary applicants by payments for accommodation and food and necessities throughout including at the time of application in June 2013.
The Tribunal accepts that the secondary applicants were substantially reliant upon the primary applicant for their food, clothing and shelter between 2013 and the present.
The Tribunal considers that the secondary applicants were supported by the primary applicant at time of application and for a substantial period prior to that. There is no evidence of underlying support from someone else or from the secondary applicants themselves. Instead, the secondary applicants have been supported directly by the primary applicant for a substantial period prior to application.
The Tribunal finds that the secondary applicants have had greater reliance upon the primary applicant than any other person or source of income at time of application and for a substantial period before that. The Tribunal finds the secondary applicants were dependent upon the primary applicant at time of application. They therefore meet regs 1.12(e)(i),(ii) and (iii) at time of application.
Time of decision criterion – cl 309.321
Since her arrival in Australia in 2018, the primary applicant has continued to provide support to the secondary applicants. The parties provided oral evidence of this continued support of the secondary applicants. The Tribunal finds the secondary applicants were dependent upon the primary applicant at time of decision. They therefore meet regs 1.12(e)(i), and (ii) at time of decision.
Although they have not physically lived in the same household since the primary applicant came to Australia in 2018, this is solely because the secondary visa applicants’ visa was refused. Were it not for the visa refusal, the Tribunal accepts that the secondary visa applicants and the primary applicant were usually resident as part of the same household, as is the current case with their other children. Funds from the primary applicant continue to be used for and sent to the secondary visa applicants. The Tribunal is satisfied that the current physical separation is a temporary arrangement. The Tribunal is satisfied that at time of decision the primary applicant’s household is thus supported and therefore reg 1.12(1)(e)(iii) is met.
The Tribunal accepts the secondary visa applicants are members of the family unit of the primary applicant at time of decision.
The Tribunal is satisfied that the secondary visa applicants made a combined application with the primary applicant, who satisfied the primary criteria in reg 309.221 and was granted a subclass 309 Partner (Provisional) visa. Accordingly, the secondary visa applicants satisfy the requirements of cl 309.311 and cl 309.321.
DECISION
The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl 309.311 of Schedule 2 to the Regulations
·cl 309.321 of Schedule 2 to the Regulations
John Longo
Member
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