Mohammadi (Migration)

[2021] AATA 1649

Mohammadi (Migration) [2021] AATA 1649 (31 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mubarak Shah Mohammadi

VISA APPLICANT:  Mr Noorullah Mohammadi

CASE NUMBER:  2003955

DIBP REFERENCE(S):  OSF2013/023241

MEMBER:M. Edgoose

DATE:31 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 31 March 2021 at 2:41pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – member of the family unit – dependence on the review applicant – money transfers – English studies – decision under review affirmed           

LEGISLATION

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 December 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 28 June 2013 on the basis of his relationship with his 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.311.

4. The review applicant appeared before the Tribunal on 31 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Noorullah Mohammadi the visa applicant and the brother of the review applicant and Mrs Jan Aghai Mohammadi the primary visa holder and wife of the review applicant. 

5. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets cl.309.311 of Schedule 2 to the Regulations which relevantly states:

   Clause 309.311

   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.

8. Reg 1.05A    Dependent 

   (1)  Subject to subregulation (2), a person (the first person) is dependent on another person if:

   (a)  at the time when it is necessary to establish whether the first person is dependent on the other person:

   (i)  the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

   (ii)  the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

   (b)  the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

9. Regulation 1.12

   (1) For the definition of member of the family unit in subsection 5(1) of the Act, and subject to sub regulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this sub regulation 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 by SR 2004, 390 with effect from 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.

10. The review applicant confirmed at hearing that he is the brother of the visa applicant and that the primary visa holder is his wife. The review applicant confirmed that the primary visa holder arrived in Australia on 12 January 2020 and has not departed. The review applicant informed the Tribunal that his brother, the visa applicant, continues to live in the rented family home back in Pakistan, does not work and is currently studying English. The review applicant further stated that he supports his brother financially and sends money on a monthly basis. The review applicant informed the Tribunal that he currently works as an Uber driver. The review applicant and the primary visa holder have 6 children of their own.  The review applicant told the Tribunal that his wife, the primary visa holder is currently pregnant expecting their seventh child. Due to a lack of physical evidence on both the Tribunal and Department files the Tribunal gives limited weight to the oral evidence provided at hearing.

11. The visa applicant at hearing referred to the review applicant and the primary visa holder as his parents given that he has lived with them and their children since he was a young child. The visa applicant informed the Tribunal that he is single, is currently studying English and has never worked. The review applicant and primary visa holder confirmed this statement by the visa applicant. The visa applicant told the Tribunal that his brother, the review applicant, has sent him money on a monthly basis since the primary visa holder arrived in Australia in January 2020. The Tribunal accepts that the review applicant and visa applicant are brothers however, due to a lack of physical evidence the Tribunal gives limited weight to the claim that the review applicant sends money on a monthly basis to the visa applicant. 

12. Regulation 1.05A(1)(b) states 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. The visa applicant confirmed at hearing that he is not incapacitated from being able to work due to totally or partial loss of bodily or mental functions. The review applicant and primary visa holder both confirmed in their oral evidence at hearing that the visa applicant is not incapacitated from being able to work due to total or partial loss of bodily or mental functions. The visa applicant claimed at hearing that he is not able to work as he is a refugee and has always been studying. The Tribunal does not accept that he is not able to work in Pakistan because he is a refugee. No evidence of the applicant claimed studies were submitted to the Tribunal. Given the visa applicant’s response at hearing and a lack of evidence on both the Tribunal and Department files the Tribunal is satisfied the applicant does not meet the requirements of Regulation 1.05A(b).

13. The review applicant’s migration agent informed the Tribunal that based on the visa applicant’s oral evidence the review applicant and primary visa holder unofficially adopt the visa applicant when he was a young child and that this is the reason why the visa applicant refers to them as his parents. The Tribunal acknowledges that the review applicant and primary visa holder may have taken care of the visa applicant since he was a young child, however no evidence to support this claim has been submitted to the Tribunal. For these reasons the Tribunal gives limited weight to the migration agent’s oral submission.

14. As the visa applicant does not meet the requirements of Regulation 1.05A(b) the visa applicant does not satisfy cl.309.311.

15. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

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

    M. Edgoose
    Member