Naseri (Migration)

[2017] AATA 762

Naseri (Migration) [2017] AATA 762 (11 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Noor Mohammad Naseri

VISA APPLICANT:  Ms Bakhtawar Naseri (secondary applicant)

CASE NUMBER:  1605021

DIBP REFERENCE(S):  BCC2015/620231

MEMBER:Stavros Georgiadis

DATE:11 May 2017

PLACE OF DECISION:  Adelaide

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

Statement made on 11 May 2017 at 6:18pm

CATCHWORDS

Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional) – Member of the family unit of brother – Customary adoption – No legal adoption provisions in Afghanistan – Substantial financial reliance on review applicant for basic needs – Dependence for subsistence and support – Predominant reliance – Substantial period – Financial support provided by a couple – Dependence not on the primary visa applicant

LEGISLATION

Migration Act 1958, ss 5(1), 65

Migration Regulation 1994, Schedule 2, cl 309.311, cl 309.321, Division 1.2

CASES

Fusi v MIAC [2012] FMCA 1037

Huynh v MIMIA (2006) 152 FCR 576

MIMIA v Pires (1998) FCR 214

Xie v MIMA (2000) FCA 230

Zeng v MIMIA [2005] FMCA 546

Phin v MIAC [2013] FMCA 60

Al Naqi v Minister for Immigration & Anor [2007] FMCA 874

Alimi v MIAC [2007] FMCA 1520

Huang v MIMA [2007] FMCA 720

MIMA v Graovac [1999] FCA 1690

Thompson v MIAC (2010) 114 ALD 86

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 21 March 2016 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 (secondary) applicant applied for the visa on 25 February 2015 as a member of the family unit (sister-in-law) of Mrs Nahida Joya (the primary applicant) on the basis of Mrs Joya’s spousal relationship with the sponsor who is an Australian citizen. His Australian citizenship was conferred on 24 September 2014. They were married on 21 October 2014.  Mr Naseri has two biological children from a previous marriage. His is expecting a third child from his current marriage. His former wife died in mid-2013. The family, including the secondary visa applicant, all lived together in one household in Uruzgan Province, Afghanistan until Mr Naseri came to Australia in May 2010. The secondary visa applicant continued to reside in the same household until the primary visa applicant and her two step-children were accepted for Class UF 309 visas and came to Australia on 28 April 2016.  After that she relocated to reside with a paternal uncle in Jaghuri District, Afghanistan and continues to live in that household with five others, including the uncle’s spouse and his own children. 

3. The sponsor in this matter is the biological brother of the (secondary) visa applicant. DNA tests arranged by the Department confirm that they are brother and sister. There are submissions made in the alternative, including those of 4 May 2017, that Mr Naseri’s sister is also the couple’s (adopted) child through Afghan customary adoption notwithstanding that she is also his biological sister. The Tribunal is not persuaded by this submission as it does not accept the review applicant’s assertion that in stepping into the shoes of his late father (which is customary regarding important decisions about his sister’s future) his sister has effectively become his and his spouse’s child through adoption. The applicants also submit that a strong personal relationship developed between the review applicant’s sister and his spouse akin to one of child and parent.  The Tribunal accepts that there are presently no legal adoption provisions available in Afghanistan. The Tribunal has had regard to the nature and duration of the relationship as the review applicant’s sister of some 19 years as opposed to any customary adoption (relating to the primary applicant) since October 2014 and considers that for adoption purposes under r.1.04(2)(b) the purported child-parent relationship is not significantly closer than the relationship of brother and sister.

4. At the material 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. Relevantly to this matter the primary criteria include criteria include cl.309.311 and cl.309.321 in respect of a combined application of members of the same family unit.

5. This matter relates only to the decision of the delegate made in respect of the secondary visa applicant, Ms Bakhtawar Naseri (DOB 8 March 1998). The delegate refused to grant the visa on the basis that she did not satisfy the secondary criteria cl.309.311 and cl.309.321 in respect of her combined application as a member of the same family unit as the primary applicant. The delegate concluded that the secondary visa applicant did not meet this criterion (or other criteria requiring her to be a holder of a Subclass 309 visa) for the grant of the visa. A copy of the delegate’s decision of 21 March 2015 was attached to the application for review.

6. The review applicant appeared before the Tribunal on 4 May 2017 to give evidence and present arguments. The Tribunal also received oral evidence from his wife, Mrs Joya. The hearing was conducted with the assistance of an interpreter of the English and Dari languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the secondary visa applicant claiming to be a member of the family unit of the primary applicant, satisfies the secondary criteria under cl.309.311 and cl.309.321 for the grant of the visa.

10. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department, including the submissions and attachments provided prior to the hearing under cover letter of 30 April 2017 and following the hearing of 4 May 2017 which the Tribunal has had regard to and discusses below.

    Are the secondary criteria requirements for the secondary applicants met?

    Member of the family unit and consideration of ‘relative’

11. The submission is that all secondary applicants named in this review application meet the criteria set out in Schedule 2 of the Migration Regulations, in relation to a Partner (Provisional) Class UF subclass 309 visa. The critical criterion in relation to the secondary applicants set out in 309.311 is as follows:

    309.311The applicant is a member of the family unit, and made a combined application with a person who satisfies the primary criteria in subdivision 309.21.

12. This criterion requires that secondary applicants are members of the primary applicant’s family unit.  The term ‘member of the family unit’ is defined in Regulation 1.12 of the Migration Regulations. The primary applicant submits that she, as the family head of the household in Haji village, Uruzgan Province, Afghanistan had living with her at the time of visa application the 3 visa applicants (being her husband’s children from his first marriage and also his sister, the secondary visa applicant) as her dependent relatives (Reg 1.12(1)(b) and Reg 1.12(1)(e)) named as the secondary applicants whom she claims she has been supporting financially (through her husband in Australia). Regulation 1.12 provides for the definition of member of the family unit in subsection 5(1) of the Act that, 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 or of the family head; or

    (b)       a dependent child of the family head or of a or of the family head; or

    (c)       a dependent child of a dependent child of the family head or of a or  of the family head; or
    [(d) omitted by SR 2004, 390 with effect from 02/04/2005 - note]

    (e) a relative of the family head or of a or 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 on the family head.

13. The submission is that the secondary visa applicant falls within the definition of ‘member of the family unit’ after consideration of the definition of ‘relative’ provided in Reg.1.12(1)(e). 

14. The Tribunal has considered the definition of ‘relative’ provided in division 1.2 of the Regulations which reads as follows:

    Relative

    in relation to a person, means: 

    (a)in the case of an applicant for a subclass 200 (Refugee) visa or a protection (Class XA) visa: 

    (i)     a close relative; or

    (ii)a grandparent, grandchild, aunt, uncle, niece or nephew, for a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew; or

    (iii)    a first or second cousin; or

    (b)       in any other case: 

    (i)     a close relative; or

    (ii)a grandparent, grandchild, aunt, uncle, niece or nephew, for a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew. 

    ‘Close relative’ is further defined in division 1.2 of the Migration Regulations as follows:

    Close Relative

    in relation to a person, means:

    (a)the spouse or defacto partner of the person; or

    (b)a child, parent, brother or sister of the person; or

    (c)a step-child, a step-brother or step-sister of the person. 

15. As aforementioned, the DNA tests show that the review applicant and his sister Bakhtawar Naseri are biological siblings. The Tribunal accepts from this evidence that this is indeed the case, as did the delegate. The Tribunal therefore finds that the secondary visa applicant is a ‘close relative’ of the family head (the primary visa applicant) as she is the sister of her , Mr Naseri.

16. The remaining issue in this application therefore, is whether Bakhtawar Naseri meets the ‘dependent’ relative criterion.  The primary and review applicants submit that their sister / sister-in-law in this application are reliant on them for financial support and subsistence for basic needs for food, clothing and shelter above all others.  The available information which the Tribunal accepts from the oral and documentary evidence is that the secondary visa applicant is aged 19 years (DOB 8 March 1998), is not partnered having never been engaged or married, is unemployed and has no independent income of her own. She is of Hazara ethnicity and Shia religion. Her parents passed away in 2005 and this is why she has been living with her brother from a young age.  She has grown up in the same household as her brother’s two children who are ten and twelve years (respectively) older than her.

17. The country information for the material time in relation to Afghanistan supports the proposition that it is likely that an ethnic Hazara woman in the secondary visa applicant’s position living in isolation from her close family members, would be likely to be dependent on or through a male relative for subsistence - in this case her brother resident in Australia.  In this regard the Tribunal has considered the March 2014 DFAT Thematic Report ‘Hazaras in Afghanistan and Pakistan.

18. This country information is consistent with the applicant’s submissions on the above point and the Tribunal therefore, has given weight to the March 2014 DFAT Thematic Report, that a woman in the secondary applicant’s position would likely have to be dependent on her brother, the spouse of the primary visa applicant, for subsistence in Afghanistan. This is consistent broadly with the review applicant’s oral evidence and submissions.

    Dependency

19. The applicants’ submissions are that as the secondary visa applicant has been living in the same household with the primary applicant (the ‘family head’) she has relied on her through the financial support provided by the review applicant in Australia as the primary source in the household for subsistence and support.  The Tribunal accepts that the primary applicant trained and worked as a teacher in the past from which she had amassed some savings in the order of 150,000 Afghanis. From the oral evidence at the hearing and the financial documents provided, the Tribunal accepts that there has been some contribution to the secondary applicant for subsistence and support for basic need, but that this is a fraction (less than one quarter) of the financial support provided by the secondary applicant’s brother through money transfers of approximately $800,00 per month over the recent years together with some personal cash transfers with travellers to Pakistan who would make arrangements to take the cash to the primary visa applicant when she was living in Haji village, Afghanistan.  The oral evidence, which the Tribunal accepts, is that these funds would be used for the benefit of all members of the household including the secondary visa applicant.

20. The Tribunal accepts the submission and evidence that when living together in the same household in the village, the primary visa applicant (through income derived by the review applicant as a painter) were primarily responsible for the care and support of the secondary visa applicant, as their unemployed sister / sister-in-law, for food, clothing and shelter; and that this support was greater than the support from any other person or source. 

21. There has been a significant change to the definition of ‘dependent’ in the Migration Regulations 1994 (the Regulations) since 1 November 1999. What constitutes the relevant period of dependency can differ depending on the context of the visa subclass in which the requirement arises. There has been little case law to provide guidance on the correct legal approach to the defined term ‘dependent’.

22. The following definition of dependent is applicable to visa applications made on or after 1 November 1999.[1]  Regulation 1.03 of the Regulations states that ‘dependent’ has the meaning given by r.1.05A.  Regulation 1.05A states:

    [1] The definition in r.1.05A was inserted by r.5(1) of Migration Amendment Regulations 1999 (No.13), (SR1999 No.259).

    1.05A   (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)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.

    (2)a person (the first person) is dependent on another person for the purposes of an application for:

    (d)     a Protection (Class XA) visa; or
      (e)     a Refugee and Humanitarian (Migrant) (Class BA) visa; or
      (ea)   a Refugee and Humanitarian (Class XB) visa; or

    (i)     a Temporary Safe Haven (Class UJ) visa;

    if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.

23. The concept of dependency in r.1.05A is limited to financial dependency, except in relation to certain specified protection and humanitarian visa classes for which it is open to consider whether the person is reliant on another for psychological or physical support.  This does not apply here.

    Wholly or Substantially Reliant

24. The definition of ‘dependent’ requires that the person has been ‘wholly or substantially reliant’ upon the other person for financial support in relation to their basic needs.  The term ‘substantially reliant’ involves a concept of predominance and requires the Tribunal to ask whether the applicant was predominantly or ‘primarily, essentially or in the main’ dependent on the other person.[2]  In Fusi v MIAC[3], the Court found that it was open for the Tribunal to explore how the visa applicant received financial support and to consider any other sources of income on which she was dependent, in this case, funds from other family members, when assessing whether she was ‘wholly or substantially reliant’.[4]  Although the Court’s consideration relates to the definition of ‘dependent’ as it stood prior to November 1999, the reasoning would appear to be equally applicable to the current definition in so far as it considers the terms ‘wholly or substantially reliant’.

    [2] Huang v MIMA [2007] FMCA 720 (Cameron FM, 16 May 2007) at [26]. Federal Magistrate Cameron followed the reasoning of Branson and Hely JJ in the Full Federal Court decision MIMA v Graovac [1999] FCA 1690 (Einfeld, Branson and Hely JJ, 16 December 1999) at [10]-[13] where Branson and Hely JJ considered the meaning of “substantially dependent” in the pre 1 November 1999 definition of ‘dependent’ in r.1.03. No significance was identified in Huang in the change from “substantially dependent” to “substantially reliant”.

    [3] [2012] FMCA 1037 (Nicholls FM, 15 November 2012).

    [4] Fusi v MIAC [2012] FMCA 1037, (Nicholls FM, 15 November 2012) at [60].

25. Importantly, in Huynh v MIMIA[5] , the Full Federal Court found that the proper construction of ‘dependent’ under the current definition in r.1.05A does not carry any implication of the notion of necessity or lack of choice.  Therefore, subject to the other requirements of the regulation, there is no need to prove more than reliance in fact.[6]  Significantly, this constituted a departure from the position adopted in MIMIA v Pires[7] and Xie v MIMA[8] which determined that the pre-1 November 1999 definition of ‘dependent’ did contemplate a degree of necessity.  In obiter comments a majority of the Court in Huynh stated that, while it was not necessary to consider whether these cases were wrongly decided, the decisions in Pires and Xie should no longer be followed.[9]

    [5] (2006) 152 FCR 576. Much of the analysis of the relevant provision pertains to the construction of r.1.05A(1) however, the Court’s reasoning appears to extend to r.1.05A in its entirety, at [35], [36] and [39].

    [6] Huynh v MIMIA (2006) 152 FCR 576 (Lander, Rares and Besanko JJ, 31 July 2006) considered the construction of ‘dependent’ in the context of ‘dependent child’, however, the conclusion as to the proper construction of ‘dependent’ in regulation 1.05A is applicable in all cases where reference is made to the term ‘dependent’, for example, relative in the r.1.12(1)(e) ‘member of a family unit’ definition and the definition of ‘aged dependent relative’ in r.1.03. Refer also Thompson v MIAC (2010) 114 ALD 86.

    [7] (1998) FCR 214 (Mansfield J, 1 December 1998) at [221].

    [8] (2000) FCA 230 (Weinberg J, 9 March 2000).

    [9] Huynh v MIMIA (2006) 152 FCR 576, (Lander, Rares and Besanko JJ, 31 July 2006) at [41].

26. In Zeng v MIMIA,[10] a decision involving an Aged Dependent Relative visa, Riethmuller FM concluded that a proper determination of the question of ‘substantial dependence’ will require considerations of at least the following factors:

    ·the nature of the person’s needs (within the meaning of the regulations);

    ·the extent to which those needs are being met by the person from their own resources;

    ·the extent to which the needs are being met by the nominator; and

    ·whether the nominator has an obligation (and the extent of the obligation) to meet those needs having regard to the nominator’s relationship with the applicant.[11]

    [10] [2005] FMCA 546 (Riethmuller FM, 27 January 2005).

    [11] Zeng v MIMIA [2005] FMCA 546 (Riethmuller FM, 27 April 2005) at [11].

1. In many cases this will require consideration of the circumstances in different periods of time leading up to the date of the application and the nature of future support having regard to the relationship.[12]  The Tribunal has exercised care in considering the last of these factors as Zeng was decided before the Full Court’s decision in Huynh.  While the existence of an obligation on the nominator may point to reliance in fact by the applicant, the Tribunal does not require such obligation before it can find a person is dependent upon a nominator.

   [12] Zeng v MIMIA [2005] FMCA 546 (Riethmuller FM, 27 April 2005) at [12].

   Level of reliance

2. The expression ‘substantially reliant’, and r.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.  As indicated above, courts have held that the term ‘substantially’ should be read as meaning ‘predominantly’ or ‘primarily, essentially or in the main’.[13]  Sub-subparagraph 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.

   [13] 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).

3. It appears there has been no judicial consideration of whether the notion of predominance in these two contexts applies to: (i) the total amount of financial support for the basic needs; or (ii) predominance in relation to the basic needs such that reliance on a person for two out of three of the basic needs will be sufficient; or (iii) whether it relates to a combination of financial support in respect of each of the basic needs of food, shelter and clothing individually.

4. The first approach places emphasis on the words ‘…for financial support to meet the first person’s basic needs’ which are then further defined as including the three items that follow. The second approach comes from placing emphasis on the fact that the support must be for the basic needs (but which does not give real consideration to the fact that those needs are specified in a cumulative manner by the use of the word ‘and’).  The third approach comes from placing emphasis on the fact that the basic needs for which financial support must be provided are described as ‘food, shelter and clothing’ which suggests a cumulative requirement of all three needs.  One example of circumstances where these different interpretations may have differing results is where two of the three basic needs of the visa applicant are met by financial support from person B and the cost of the third and most expensive basic need is met by person C who is providing a greater amount of money than person B and the visa applicant is claiming to be dependent upon person B.

5. The third approach, which requires that financial support be being provided in relation to all three basic needs and, overall, the person can be described as the predominant source of support, even if only providing a small amount in relation to one of the basic needs, appears to be the approach that best reflects all parts of the regulation. In the Tribunal’s view, to require the person to be predominantly reliant upon another person in respect of each of the three basic needs would appear to place the bar too high and is not necessary to give effect to all parts of the definition.  However, on current authority the Tribunal is aware that a variety of approaches appear open. 

   Substantial Period

6. The applicants submit that financial support has been provided to the secondary visa applicant for a substantial period of time. A person must be wholly or substantially reliant upon the other person at the relevant time and for a substantial period immediately before the relevant time.  In this case the definition of ‘dependent’ arises in relation to a time of application criterion.  Therefore, the applicants must be dependent on the relevant person at the time of application and for a ‘substantial period’ immediately before the visa application. There is no definition in the Regulations of what constitutes a ‘substantial period’.  In the context in which ‘substantial’ is used in r.1.05A it has been held that it should be understood to mean a lengthy period.[14]

   [14] Huang v MIMA [2007] FMCA 720 (Cameron FM, 16 May 2007) at [43]. This finding was made in the context of considering the definition of ‘aged dependent relative’ in r.1.03 which refers to a relative who ’has been dependent on that person for a reasonable period, and remains so dependent’ and how it should be reconciled with the definition of dependent in r.1.05A that the person should be wholly or substantially reliant upon the other person for a substantial period. His Honour went on to state at [44] that, by contrast, a ‘reasonable period’ need not be lengthy.

7. Departmental guidelines (PAM3) interpret a ‘substantial period’ as usually taken to be at least 12 months.[15]  However, while the Tribunal may have regard to Departmental guidelines or interpretations, it is not binding on the Tribunal and the individual circumstances of the case are considered to ensure that the departmental guidelines are not elevated or treated as a legislative requirement. 

   [15] PAM3: Act - Act-defined terms - s5G – Relationships and family members – Dependent family members – paragraph 41.2 (compilation 23/3/12).

8. As aforementioned, in Zeng v MIMIA[16] the following factors were identified as relevant to the consideration of whether the dependence was for a ‘substantial period’:

   ·     the actual period of dependence;

   ·     the reason for the dependence; and

   ·     the extent or nature of the dependence.[17]

   [16] [2005] FMCA 546 (Riethmuller FM, 27 January 2005).

   [17] Zeng v MIMIA [2005] FMCA 546 (Riethmuller FM, 27 April 2005) at [13]

9. In this case the care provided to the secondary applicant is claimed to have been over a ‘substantial period’ of a number of years since before 2010 when the review applicant came to Australia and that this has continued after his marriage to his spouse from 21 October 2014. The evidence, supported by money transfer slips from Qasumi Exchange and the oral evidence given, shows that ongoing support continues to be provided by the primary visa applicant of around $400 per month. 

10. The primary visa applicant explained to the Tribunal that although she does not work (and is unlikely to for another two or more years as she is expecting a child in September 2017), she derives some income from Centrelink benefits in the order of $480 per fortnight.  This is in addition to her retained savings of around $800 and other funds from her husband’s work as a painter of approximately $3,300 per fortnight for 55 - 60 hours’ work per week @ $30 per hour. Their combined financial resources are used to support the review applicant’s sister in Afghanistan, noting that the majority - more than three quarters, of this financial support is derived via the review applicant from his full-time work as a painter.

    Financial support provided by a couple

11. The Regulations generally identify a single person (e.g. the primary visa applicant or the sponsor) on whom a visa applicant is required to be ‘dependent’.  As a practical matter, where that person is part of a couple it is often difficult to ascertain whether that person or their partner is in fact the person on whom the visa applicant is reliant. The Federal Magistrates Court in Al Naqi[18] took the view that a ‘broad practical judgment’ is required in the circumstances of the particular case and this may require consideration of the underlying source of the support and the reasons for it.  Federal Magistrate Riethmuller (as he then was) commented that ‘on a broad and practical level financial support for a person’s relatives, from their spouse, can be considered support by them if their spousal relationship is an essential or substantial part of the reason that the support is provided.’[19]  Applying this to the circumstances of this case, one view is that the primary applicant may be considered to be the source of the support because it is her spousal relationship with the sponsor that is the reason for the financial support being provided to the secondary applicant.

    [18] Al Naqi v MIAC [2007] FMCA 874 (Riethmuller FM, 5 June 2007).

    [19] Al Naqi v MIAC [2007] FMCA 874 (Riethmuller FM, 5 June 2007) at [16]. However, note that in Phin v MIAC [2013] FMCA 60, Burchardt FM clarified in obiter that the comments in Al Naqi regarding spousal arrangements did not give rise to any broader principle and were confined to the facts of that case.

12. The situation may be different in circumstances where support would be provided to a secondary applicant regardless of the nature of the relationship with the primary visa applicant. The reason for the support may not be based on the relationship between the sponsor and the primary visa applicant such that the support cannot be attributed to her.[20] It is also arguable and asserted that the support would be provided by the primary applicant to her sister-in-law independently of the spousal relationship with the review applicant.

    [20] See generally Al Naqi v MIAC [2007] FMCA 874 (Riethmuller FM, 5 June 2007) and Alimi v MIAC [2007] FMCA 1520 (Riley FM, 16 October 2007).

13. Importantly, in Phin v MIAC[21], Burchardt FM indicated in obiter that the comments in Al Naqi regarding spousal arrangements did not give rise to any broader principle and were confined to the facts of that case.[22]  However, ultimately, the judgments in Al Naqi and Phin demonstrate that the issue of dependency is a question of fact determined by the Tribunal having regard to the factual matrix of the particular case at hand. 

    [21] [2013] FMCA 60.

    [22] See Phin v MIAC [2013] FMCA 60. In this case, the primary visa applicant for a Remaining Relative visa provided funds to her adult son, which she had in turn received from the Australian sponsor, her brother. The Court found that the Tribunal had erred by moving directly from the issue of the source of funds to a conclusion that the adult son was not dependent upon the primary visa applicant, without making a finding on the factual issue that the Regulations required to be addressed, namely whether he was indeed dependent upon her.

14. In Al Naqi v Minister for Immigration & Anor, 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. ...

15. In Alimi v Minister for Immigration & Anor  it was argued that Al Naqi was wrongly decided, and Federal Magistrate Riley said at [19]:

16. As to Al Naqi it appears the overall result was correct….  The ratio of Al Naqi appears to be that, at least in relation to secondary visa applicants for a partner visa, where the ultimate source of support is a particular person, the secondary visa applicant is not a dependent of the person’s spouse.

17. From the financial arrangements discussed above, the Tribunal accepts that the source of the funds used to provide for basic needs for food, shelter and clothing for the secondary visa applicant was and remains primarily from the review applicant as shown by receipts for money transfer to his sister and other evidence when she was in Afghanistan.  This continues presently at half the earlier rate of $800 per month to the secondary applicant (via the primary applicant) for the ongoing support of her sister-in-law. The Tribunal notes this support has continued to the secondary visa applicant even after her brother left Afghanistan and arrived in Australia but considers that this has continued substantially through his own resources once his spouse and children arrived in Australia. He confirmed at the hearing when asked, that he would support his sister regardless of his spousal relationship with Ms Joya, stating that it is his ‘duty to support’ his sister and ‘only natural’ that he would continue to do this.

18. When Mrs Joya was asked if she would continue to support her sister-in-law should the couple say separate or divorce, she responded that she would support her emotionally as she had developed a ‘close relationship’ with her like a ’child’.  She did not specifically mention financial support until this question was asked and then she responded that she would continue with financial support too.

19. The Tribunal notes Ms Joya’s oral evidence that she does not plan to work until one to two years after the birth of her child expected in September 2017 and in the interim, until the end of 2018 or 2019, the Tribunal accepts that she would (independently of her husband) only have meagre income from Centrelink.  The Tribunal further notes that until her departure to Australia in April 2016 Ms Joya had only known her sister-in-law since around the time of the couple’s marriage on 21 October 2014.  The Tribunal places weight on this relatively short period of 18 months in which to developed the close relationship with her like a ‘child’ in respect of the suggestion of ongoing financial support from her specifically [regardless of her spousal relationship].

20. As the family head in their village of Haji, Afghanistan, applying Al Naqi and Fusi v MIAC discussed, the Tribunal accepts that it is the spousal relationship between the primary applicant and the sponsor that at the material times is an essential or substantial part of the reason that the review applicant’s financial support is being provided to the secondary visa applicant.

21. As a result, the Tribunal finds at the time of visa application on 25 February 2015 the secondary visa applicant was dependent (as defined) on her brother, Mr Naseri. As the secondary visa applicant is dependent on the review applicant and not on the primary visa applicant, the requirement that she is dependent on the family head in r.1.12(1)(e)(iii) is not met. Therefore the secondary visa applicant and the review applicant do not meet the definition of member of the family unit and do not meet cl.309.311 of Schedule 2 of the Regulations.

22. For the reasons above, the secondary visa applicant, Ms Bakhtawar Naseri, does not satisfy the criteria for the grant of the visa.

23. This is a poor outcome for the applicants as the secondary visa applicant is now left in the care of another person, a paternal uncle of the review applicant residing in Jaghuri in Afghanistan which has required the secondary visa applicant to move from her home village in Haji. Mr Naseri and the primary visa applicant may wish to seek advice on any other migration pathways or applying for other types of visas for his sister, or in seeking the intervention of the Minister. 

    DECISION

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

    Stavros Georgiadis
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day‑to‑day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long‑term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).