Khadimi (Migration)

[2022] AATA 116

Khadimi (Migration) [2022] AATA 116 (13 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohammad Zaki Khadimi

VISA APPLICANT:  Ms Maryam Khadimi

REPRESENTATIVE:  Mr Besmellah Rezaee

CASE NUMBER:  1836354

HOME AFFAIRS REFERENCE(S):          OSF2013/023391

MEMBER:Meredith Jackson

DATE:13 January 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the applicant meets the following criteria for a 309 (Spouse (Provisional)) visa:

· cl 309.311

Statement made on 13 January 2022 at 2:44pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – member of the family unit – dependent relative of the primary applicant – financially dependent greater upon the sponsor than the primary applicant – primary applicant’s finances supplemented by the sponsor – income from private students – decision under review remitted    

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 309.311; rr 1.03, 1.05, 1.12

CASES

Huynh v MIMA [2006] FCAFC 122

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 30 June 2013. The delegate refused to grant the visa on 8 October 2018 on the basis that the applicant did not satisfy the requirements of cl 309.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 309.311 of Schedule 2 relevantly requires the applicant to be a member of the family unit of the family head, in this case the primary applicant, Parween Khadimi, at the time of application and decision.

3.    The review applicant appeared before the Tribunal on 10 January 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in Pakistan and the review applicant’s spouse. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

4.    The review applicant was represented in relation to the review.

5.    For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

BACKGROUND

6.    The review applicant is Mohammad Zaki Khadimi, born in Afghanistan in1987 and an Australian citizen by grant. The primary visa applicant is Parween Khadimi, born in Afghanistan in1991 and a resident of Australia since 25 December 2018. She was granted a subclass Partner (migrant) (Class BC) Partner (Subclass 100) visa on 1 November 2018. The secondary applicant and the subject of this review is Maryam Khadimi, born in Afghanistan in 1957. Maryam Khadimi was included in the application for the combined Partner (Class UF/BC) subclass 309/100 visa of 30 June 2013. Secondary applicant Mina Khadimi, the daughter of Mohammad and Parween Khadimi, was also granted a subclass 100 partner visa on 1 November 2018. Maryam Khadimi was refused the Class UF 309 provisional visa on the basis that she was not a dependent relative of the primary applicant Parween Khadimi. In broad summary, the delegate found in relation to whether the applicant was a member of the family unit as defined, that the secondary applicant was dependent upon her son, Mohammad Khadimi, rather than her daughter-in-law Parween, because funds sent to Pakistan to support the family members were greater than any amount provided by Parween Khadimi. In their oral evidence to the Tribunal, the parties claimed this was not correct, that the funds provided by the review applicant were an occasional supplement to the income Parween Khadimi earned as a teacher and tutor and that her income was the primary source of funds used to support the applicant and meet her basic needs of food, clothing and shelter.

ISSUES AND LAW

7.    There is a two stage process for onshore Partner visas. An applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years.

8.    In this matter, the Tribunal is considering the first, temporary stage in relation to Maryam, however it is noted that in this matter, the primary applicant Parween Khadimi and secondary applicant Mina Khadimi were granted Subclass 100 permanent visas on 1 November 2018.

9. The secondary criteria that must be satisfied for an application to be satisfied for the grant of a subclass 309 visa are set out in subdivision 309.3 of the Regulations. Relevantly, they require at Clause 309.311 that the applicant is be a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria for the visa. That the primary applicant satisfies the primary criteria is not in dispute. The sponsorship of the secondary applicant was included in the application.

1. The issue in this review is whether the applicant at the time of application is a member of the family unit at the of the primary applicant.

2. 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.

3. Regulation 1.12(1) 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 dependent child of the family head or of their spouse or de facto partner;

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

   a relative of the family head or their spouse or de facto partner who does not have a partner, is usually resident in the family head’s household and is dependent on the family head.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. In the present matter, the applicant claims to be a relative of the family head or the spouse or de facto partner of Parween Khadimi; and to be a member of the family unit of family head Parween Khadimi; and to be wholly dependent on the family head at the time of application.

2. In certain circumstances a person is a member of another person’s family unit if they are a ‘relative’ of the family head or their spouse or de facto partner’ as defined in reg 1.03. A relative includes a parent, child, sibling, grandparent, grandchild, aunt, uncle, niece, nephew or step-equivalent.

3. When considering whether the relative is a member of the family unit as required under reg 1.12(1)(e)(i) the Tribunal must be satisfied that they do not currently have a spouse or de facto partner, are usually resident in the family head's household, and are dependent on the ‘family head’.

4. When considering whether the applicant is dependent on the family head as required under reg 1.05A, the Tribunal must be satisfied that they are:

   ‘wholly or substantially’ reliant on the other person for financial support at the relevant time and for a substantial period immediately before that time, and the financial support being provided is to meet the applicant’s basic needs for food, clothing and shelter, and their reliance on the other person is greater than their reliance on any other person or source of support; or

   ‘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.

5. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is reliant for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Maryam Khadimi was included in the application of the Primary Applicant Parween Khadimi for a Partner (Provisional) (Class UF) (Subclass 309) and Partner (Migrant) (Class BC) Subclass 100 visa. Maryam Khadimi and the other secondary applicant, her biological child Mina Khadimi, have each been granted Partner visas.

2. The delegate considered the application of Maryam Khadimi on the basis that she was a secondary applicant and required only to meet the secondary criteria for the grant. These criteria require that at the time of application and time of decision, the applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria.

3. The delegate found Maryam Khadimi met the requirement that she had made a combined application with the primary applicant and found that she was sponsored as required. The Tribunal is satisfied on the evidence that Maryam Khadimi meets the application and sponsorship requirements.

4. The Tribunal has considered whether the applicant is a relative of the family head or of a spouse or de facto partner of the family head, Parween Khadimi. The Tribunal accepts that Maryam Khadimi is the mother of Mohammad Khadimi, the spouse of the family head.

5. The Tribunal has considered whether the applicant has a spouse or de facto partner and meets sub regulation 1.12(1)(e)(i). The delegate accepted that the applicant is a widow and that she does not have a spouse or de facto partner. There is no evidence before the Tribunal that Maryam Khadimi has a spouse or de facto partner.

Was the applicant wholly or substantially reliant on the family head?

1. At the time of the visa application, the applicant was living with Parween Khadimi and her child, Mina Khadimi, in Pakistan. The review applicant claims they cohabited between 2009 and 25 December 2018, when Parween and Mina Khadimi left for Australia. Since that time, the review applicant claims, Maryam Khadimi has resided at the same house they shared, while her daughter-in-law and grand-daughter have gone live with the sponsor in Australia, where the parties now have two more children.

2. Parween Khadimi claims that at the time of the visa application, she was supporting Maryam Khadimi and her daughter, by using her income for their daily needs including food, clothing and shelter. The property in which they lived is a rental property and she paid the rent and provided all other items as required. To earn the funds, she was employed as a Dari teacher in a private school in Pakistan in the mornings, and claims that in the afternoons, she was tutoring private students in English. She claims that this provided her with sufficient funds to support Maryam Khadimi, herself and her daughter, although her income was supplemented from time to time by amounts sent by the sponsor from Australia. The applicant provided evidence to the Department that she earned 8,000 Pakistan Rupees (PKR) per month from the school employment. The Tribunal accepts the claim. She told the Tribunal at the hearing, however, that this was not the total of her earnings, and that the delegate had not taken into account that she also earned an additional 8,000 PKR each month from each of three private students. The Tribunal calculated that if this were the case, the total income would therefore be 32,000PKR or approximately AUD250 a month over nine years.

3. The review applicant states he did send funds as needed, but usually “every three or four months”, for the family’s support. The review applicant said it was not necessary to send her more because of her income. After the hearing, the review applicant provided a statement from Zahra Yazdanian of Toronto, Canada, who stated that she was a private student of Parween Khadimi in Pakistan from 2014 to June 2018. She states that she paid 8,000PKR per month to Ms Khadimi to learn specialised English from her. She considered Ms Khadimi a brilliant teacher with excellent methods and credits her with her language success. The witness provided identity and contact details for verification purposes. The Tribunal accepts the evidence of tuition fees paid and considers that Parween Khadimi earned 8,000 a month from at least one student on top of her school earnings and is satisfied this indicates Parween Khadimi was capable of earning income as an English tutor for paid clients, and accepts that three students at a time is a credible number. Mohammad Khadimi has provided details of transfers he made to Pakistan between March 2015 and June 2017. The total of transfers, made to many different persons but including Parween and Maryam Khadimi, total 49,655 AUD. Of that, the total amount sent to Parween and Maryam Khadimi is 16,400 AUD.  The Tribunal is satisfied that the funds provided by Parween Khadimi to her mother-in-law were greater than the any funds provided by the primary applicant or any other source.

4. The Tribunal is satisfied the applicant does not have a spouse or de facto partner, and that she was usually resident in the family’s household and dependent on the family head at the time of application.

5. For the reasons above, the Tribunal is satisfied the applicant Maryam Khadimi was wholly or substantially reliant on the family head Parween Khadimi for financial support at the relevant time and for a substantial period immediately before that time, and the financial support being provided was sufficient to meet the applicant’s basic needs for food, clothing and shelter; and that her reliance the family head at the time of application is greater than her reliance on any other person or source of support.

6. For these reasons, the applicant cl 309.311(b) and accordingly, meets cl 309.311 at the time of application.

DECISION

1. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the applicant meets the following criteria for a 309 (Spouse (Provisional)) visa:

   ·cl 309.311.

Meredith Jackson
Member

1.12     Member of the family unit

(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

(d)     (Omitted 02/04/2005)

(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.

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