RIZVI (Migration)

[2018] AATA 1122

RIZVI (Migration) [2018] AATA 1122 (22 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs GULNAZ MEHDI RIZVI

CASE NUMBER:  1616002

DIBP REFERENCE(S):  BCC2016/1687138

MEMBER:John Cipolla

DATE:22 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa

Statement made on 22 March 2018 at 3:55pm

CATCHWORDS
Migration – Skilled Nominated (Permanent) visa – Subclass 190 – Skilled – Nominated – Member of a family unit – Dependency on family head – Existence of rental agreement – Usual residency in the family head household

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.12, Schedule 2 cl 190.311

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 9 September 2016 to refuse to grant the visa applicant a Skilled Nominated (Permanent) Subclass 190 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 10 May 2016. The delegate refused to grant the visa on the basis that the applicant was not a dependent relative of the primary visa applicant, and that there was insufficient evidence to establish that the applicant usually lived with the primary visa applicant and was wholly and substantially reliant on the primary visa applicant for financial support. The delegate went on to find that as the applicant was not usually resident in the family heads household and was dependent on the family head that the applicant did not meet the requirements of regulation 1.12 of the Migration Regulations.

   RELEVANT LAW

3. 190.311—Criteria pertaining to secondary visa applicants

   The applicant:

   (a)  is a member of the family unit of a person who holds a Subclass 190 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

   (b)  made a combined application with that person.

4. 1.12  Member of the family unit

   (1)  This regulation has effect for the purposes of the definition (the main definition) of member of the family unit in subsection 5(1) of the Act.

   General rule

   (2)  A person is a member of the family unit of another person (the family head) if the person:

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

   (b)  is a child or step‑child of the family head or of a spouse or de facto partner of the family head (other than a child or step‑child who is engaged to be married or has a spouse or de facto partner) and:

   (i)  has not turned 18; or

   (ii)  has turned 18, but has not turned 23, and is dependent on the family head or on the spouse or de facto partner of the family head; or

   (iii)  has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

   (c)  is a dependent child of a person who meets the conditions in paragraph (b).

   This subregulation has effect subject to the later subregulations of this regulation.

   (4)  A person is a member of the family unit of another person (the family head) if the person is:

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

   (b)  a dependent child of:

   (i)  the family head; or

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

   (c)  a dependent child of a dependent child of:

   (i)  the family head; or

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

   (d)  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.

5. The applicant appeared before the Tribunal on 7 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter in law who was the primary visa applicant for the purposes of the visa application that is the subject of this review, Ms Samrah Arif.

6. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant is a member of the family unit of a person who holds a Subclass 190 visa granted on the basis of satisfying the primary criteria for the grant of the visa and that they made a combined application with that person.

9. The evidence before the Tribunal indicates that the Ms Samrah Arif is the holder of a Subclass 190 visa and that she is the daughter in law of the applicant and is married to her son Syed Ghulam Abbas Rezvi.  The evidence further indicates that the applicant made a combined application with Ms Arif for the grant of a Subclass 190 visa as a secondary visa applicant on the basis that she was a member of the family unit of Ms Arif.

10. The delegate was not satisfied that the applicant was a member of the family unit of Ms Arif. The delegate made this finding on the basis that there was no substantive evidence that the applicant was wholly or substantially dependent on Ms Arif for support and there was insufficient evidence that the applicant was usually resident in the family heads household and was dependent on the family head.

11. The applicant lodged an application for review with the Tribunal on 29 September 2016. A number of documents were submitted with the review application which have been duly considered by the Tribunal. Prior to the hearing further documents were provided to the Tribunal which have been duly considered.

12. The Tribunal initially invited the applicant to attend a review hearing on 7 November 2017. On 31 October 2017 the applicant engaged a migration agent for the purposes of the review.

13. On 1 November 2017 the Tribunal received a request that the hearing scheduled for 7 November 2017 be postponed on the basis that the applicant was suffering with a medical problem that precluded her from attending the hearing. The hearing adjournment request was consented to and a new hearing was scheduled for 13 December 2017. Due to circumstances beyond the Tribunal members control the hearing had to be rescheduled to 7 March 2018.

14. Prior to the conduct of the hearing the Tribunal received a number of documents from the applicant which it has duly considered.

15. The applicant attended the review hearing along with her representative and daughter-in-law Ms Arif on 7 March 2018. At the outset of the review hearing the Tribunal explained to the applicant in detail the relevant issues in review and about the merits review process.

16. The applicant gave her name and date of birth. The applicant advised that she was born in Karachi in Pakistan. She advised that her husband had passed away and that he was in his 50s at the time of his death. She advised that he was born in approximately 1948 or 1949 and that he suffered diabetes.

17. The Tribunal asked the applicant about her family composition. She advised that she had 2 sons and 1 daughter. She advised that her eldest son Syed Rizwan Rizvi was aged 33 and currently resided in West Hoxton New South Wales. The Tribunal asked the applicant about her eldest son’s migration to Australia and she advised that he obtained permanent residency as a skilled migrant through his skills in information technology and that he came to Australia in 2006. The applicant advised that her eldest son sponsored his wife to Australia, Saleema Fatima who is approximately 28 years old. She advised that the marriage between her son and daughter-in-law was an arranged marriage and there were 2 children of the relationship both daughters, Sukyane and Samaana. 

18. The applicant advised that her second son was Syed Adeel and he was approximately 30 and he was married to Samrah Arif who is aged approximately 25. The Tribunal asked the applicant how her second son obtain permanent residence in Australia and she advised that her daughter-in-law Ms Arif applied for a subclass 190 permanent skilled visa on the basis of her skills as an information technology specialist in around October 2016. She was successful in obtaining the Visa and was issued with the visa and travel to Australia in December 2016.

19. The applicant advised that her daughter Fauzia Hassan Rezvi was approximately 33 years old and was currently residing with her husband in Dubai. She advised that her daughter and her daughter’s husband were both working in Dubai and that her daughter worked as a receptionist and her son-in-law as a security guard and they currently held two-year work visas and there were no children of the relationship.

20. The Tribunal asked the applicant when she first came to Australia and what visa she travelled on. The applicant advised that she travelled to Australia in January 2016 for the first time as the holder of a visitor visa that was valid for 6 months. The Tribunal enquired whether it was a family sponsored visitor visa and she advised that it was, and that her older son Syed Rizwan had sponsored her under the family sponsored visitor scheme. The Tribunal asked the applicant whether she returned to Pakistan at the end of her six-month visitor visa and she advised that she did not. The Tribunal asked for the reason that she did not return and she advised because she had applied for a Subclass 190 visa as a secondary visa applicant. She advised that she was issued with a Bridging visa pending the outcome of the visa application that is the subject of this review.

21. The Tribunal noted that the Department of Immigration thoroughly assessed visitor visas particularly from countries such as Pakistan to determine whether a visa applicant intended to genuinely visit Australia. The Tribunal noted that countries such as Pakistan had a high rate of residents that failed to return at the end of the visitor visa and who would often make an application for a protection visa onshore. The Tribunal asked the applicant what type of evidence she provided with her visitor visa application to satisfy the Department that there was sufficient incentive for her to return to Pakistan at the end of her proposed visit.

22. The applicant advised that at the time that she applied for the visitor visa she was living in Pakistan with her son Syed Adeel and daughter-in-law Ms Arif in Karachi.  She advised that her daughter was residing in Dubai with her husband. She advised that she was residing in her late parent’s home in Nazimabad in Pakistan.  She further advised that upon the death of her parents her brother inherited the property but as he was a permanent resident of the United Kingdom she had lived in the property for an extended period.

23. The Tribunal asked the applicant about her siblings. She advised that she had one sister who lived in India in Lucknow and that she had 3 brothers who were all residents in the United Kingdom. Once again the Tribunal asked the applicant about the evidence that she provided to the Department of immigration to support her visitor visa application that she made in late 2015. The applicant advised that she provided her late husband’s death certificate. She advised that she had 3 brothers living in the United Kingdom and that she had visited them on 2 occasions the last being in July 2006. She advised that her eldest son Syed Rizwan who had been resident in Australia since 2006 sent evidence of his financial position to the Department to establish that he could provide financial support to the applicant for the duration of her proposed visit.

24. The Tribunal asked the applicant when her daughter-in-law Ms Arif applied for her Subclass 190 visa. The applicant stated that to her knowledge her daughter-in-law applied for the visa in May 2016 and was issued with the visa in November 2016 and arrived in Australia in December 2016.

25. The Tribunal asked the applicant whether the marriage between her daughter-in-law Ms Arif and her son Syed was an arranged marriage and she confirmed that it was. She advised that her son and daughter-in-law married in August 2014. The Tribunal asked the applicant where her son and daughter-in-law lived after their marriage in August 2014 and she advised with her in her late parent’s home in Nazimabad.  She advised that they paid rent to her brother after they took occupation.  The applicant advised that she lived in the home of her late parents from around 1990 until the time that she came to Australia in January 2016 and that she lived in the property rent free. She advised that her late husband did not pay rent as he had ongoing problems with retaining work. She advised that it was only when her son and daughter-in-law moved into the home after their marriage in August 2014 that they made a contribution towards rent.

26. The Tribunal asked the applicant whether her son Syed Rizwan was providing support to her after he migrated to Australia in 2006 and she advised that he was providing financial support to her. The Tribunal noting that Syed Rizwan had sponsored the applicant for her visitor visa asked the applicant where she resided from the time of her arrival in January 2016 in Australia. The applicant stated that between January and December 2016 she lived with her son in West Hoxton. She advised that after her son Syed Adeel and daughter-in-law Ms Arif arrived from Pakistan in December 2016 that they had lived in Melbourne. The Tribunal asked the applicant whether she resided with them in Melbourne and the name of the suburb that they resided in. The applicant advised that she did not know which suburb they lived in and that she would travel from time to time by road to Melbourne to visit Syed Adeel and Ms Arif and that her eldest son Syed Rizwan would drive her to Melbourne.

27. The Tribunal asked the applicant from the time of her arrival in Australia in January 2016 how many months she had resided in Sydney and how many months she had resided in Melbourne. The applicant stated that she resided 3 to 4 months in Sydney and around 7 to 8 months in Melbourne. The Tribunal asked the applicant where she had been residing in 2018 and she advised that she had been living in Sydney with her son at West Hoxton awaiting the review hearing.

28. The Tribunal asked the applicant whether she had any relatives in Pakistan and she advised that she did not. The Tribunal asked the applicant whether she had discussed with her family any other types of visas such as a contributory parent visa or a remaining relative visa and she advised that she had not.

29. The Tribunal took evidence from the applicant’s daughter-in-law Ms Samrah Arif.  The Tribunal asked the witness when she arrived in Australia and she advised on 21 December 2016.  The witness advised that she applied for a subclass 190 visa in May 2016 on the basis of her skills in information technology. The Tribunal asked the witness when she married her husband and she advised in August 2014. The Tribunal asked the witness whether she knew her husband before the marriage and she advised for a short time only. She advised the Tribunal that she lived with her parents prior to her wedding and that she moved in with her husband and mother-in-law in Nazimabad after the wedding and that they resided together from August 2014 until December 2016. The witness advised that in January 2016 her mother-in-law obtained a visitor visa to travel to Australia.

30. The Tribunal asked the witness whether she paid any rent for the premises in Nazimabad and she advised that her and her husband paid rent to her mother-in-law’s brother who lived in the United Kingdom. The Tribunal asked the witness where her mother-in-law had resided since arriving in Australia and she advised with her brother-in-law, Syed Rizwan in West Hoxton. The Tribunal asked the witness where she and her husband resided after arriving in Australia in December 2016 and she advised that they resided with her brother-in-law at West Hoxton until March 2017 at which time they relocated to Melbourne to the suburb of Truganine.  The Tribunal asked the witness whether her mother-in-law had ever resided with her and her husband in Melbourne and she advised that her mother-in-law had never been to Melbourne. At that point the applicant interjected and said to the witness that she had visited Melbourne when the witness was overseas in Pakistan. The Tribunal asked the witness when she went to Pakistan and she advised between October 2017 and December 2017 for a period of 2 months to visit her mother who was unwell. The witness stated that her mother-in-law had predominantly been living with her eldest son in West Hoxton.

31. The Tribunal asked the witness what she did for work and she advised that she worked as a software tester at a company called Risk Associates. She advised that her husband was currently unemployed and had been for the past 3 months and that he had previously worked in jobs in information technology.

32. The Tribunal took further evidence from the applicant. The Tribunal noted that the applicant’s evidence pertaining to her living arrangements in Australia and those of her daughter-in-law were inconsistent and the Tribunal pointed out to the applicant that this raise credibility issues as the Tribunal could find that the applicant was not giving a truthful account of her circumstances. The Tribunal invited the applicant to clarify her evidence and respond to the Tribunal’s credibility concerns. The applicant stated that she had visited a cousin in Melbourne and a friend of her sons as well as family friends and that she had stayed with them. The Tribunal asked the applicant whether she had anything more to say. The applicant stated that she had no one left in Pakistan that she was dependent on her daughter-in-law, the hearing concluded.

    FINDINGS AND REASONS

33. The evidence before the Tribunal indicates that on 18 June 2016 the applicant’s daughter in law Ms Arif was sent a letter by the Department seeking evidence that the applicant was a dependent relative of Ms Arif and her husband Syed Rizvi, including evidence that the applicant usually resided with them and was wholly or substantially reliant on them for financial support.

34. In response the following information was provided. A family book showing the applicant’s relationship to Syed Adeel. A death certificate for the applicant’s late husband. A rent book which only listed Ms Arif’s name. An affidavit from the main applicant. A family book that lists Ms Arif and Mr Syed Adeel Rizvi. A rental agreement which did not include the applicant. As has been noted the Departmental delegate concluded that this did not show that the applicant usually resided with Ms Arif and Mr Rizvi and indeed Departmental records indicated that the applicant had been residing with her Australian citizen Syed Rizwan son in Australia since 28 January 2016. As a consequence the delegate found that the applicant was not usually resident in the family heads household or that she was dependent on the family head and therefore did not meet the requirements of regulation 1.12 of the Migration Regulations.

35. At the time of lodgement of the review a number of documents were provided to the Tribunal. These documents included prescriptions issued by a homeopathic medical practitioner for the applicant with a date range from June 2015 through to 20 January 2016. Evidence of the purchase of pharmaceutical goods from a general store in Nazimabad with a handwritten notation that the customer was Ms Arif.  Evidence of a rental receipt from the applicant’s son and the payment of a refundable security deposit for premises in Nazimabad issued on 16 January 2016 with an 11 month term. Evidence of the tenancy agreement renewal which is date stamped 5 January 2016 and took effect from 16 January 2016. A copy of a death certificate for the applicant’s husband issued in 2010. There is no documentary evidence that has been provided pertaining to a lease agreement for the premises in Nazimabad before this period.  The Tribunal finds that the absence of such evidence suggests there was no such agreement in place from the time of Syed Adeel’s marriage in August 2014 until the applicant’s departure to Australia as the holder of a visitor visa in January 2016. The Tribunal has also had regard to the evidence of the applicant that after the death of her parents she and her late husband resided in the Nazimabad premises rent free due to the fact that her husband had ongoing employment problems and the evidence indicates that this was a long term arrangement.

1. The Tribunal notes the affidavit of financial support signed by Ms Arif on 20 June 2016 claiming that the applicant was dependent on Ms Arif financially and physically.  Apart from the provision of some homeopathic receipts that range from June 2015 to January 2016 and some receipts from a general store dated June to November 2015 there has been no evidence from a bank or other financial institution that would be corroborative of the applicant’s ongoing dependence on Ms Arif.  The applicant has not provided any evidence pertaining to her own financial means.

2. Additional documents were provided prior to the review hearing including an affidavit from the applicant attested to on 21 April 2016 indicating that after the death of her husband in December 2010 she had been totally dependent on her daughter-in-law Ms Arif the wife of her son Syed.  An affidavit from the applicant’s son Syed Adeel indicating that he and his wife Ms Arif and the applicant had been residing at a residence in Nazimabad since 16 January 2016. Evidence pertaining to the applicant’s daughter and son-in-law’s employment and residence in Dubai in the United Arab Emirates.

3. Regulation 1.12(4) states that a person is a member of the family unit of another person (the family head) if the person is a relative of the family head and is usually resident in the family heads household and is dependent on the family head.

4. The evidence before the Tribunal indicates as follows. The application for the visa that is the subject of this review was made in May 2016.  The evidence indicates that the applicant came to Australia as the holder of a family sponsored visitor visa in January 2016 and has not departed the country since that time. The evidence indicates that this visa was valid for 6 months. The evidence indicates that between January 2016 and at least December 2016 the applicant has been residing with her son Syed Rizwan Rizvi and daughter in law Saleema Fatima and her two granddaughters in West Hoxton NSW.  The evidence indicates that her son Syed Rizwan sponsored his mother to Australia for the family sponsored visitor visa and provided evidence to the Department of Immigration that he would be able to provide financial support for the duration of his mother’s visit a visit of 6 months duration. No evidence has been adduced to indicate that Ms Arif provided any financial support to the applicant for the purposes of the applicant’s visitor visa and the evidence indicates that Syed Rizwan was the sole source of evidence for that support.  The evidence before the Tribunal indicates that Syed Rizwan’s financial support has been ongoing since the arrival of the applicant in Australia on 28 January 2016.

5. The evidence before the Tribunal indicates that the applicant’s youngest son, Syed Adeel Rizvi and his wife Ms Arif were married in August 2014 via an arranged marriage. The evidence provided by Ms Arif at the review hearing indicates that she only knew her husband for a short period of time before the marriage in August 2014 and that prior to the marriage she resided with her parents. The evidence of Ms Arif was that after the marriage she moved in with her husband and mother-in-law. This evidence is contradicted in the affidavit of 20 April 2016 made by the applicant in which she states that “after the death of my husband in December 2010, since then I am totally depending upon my daughter-in-law Samrah Arif (son wife)”. The evidence of Ms Arif as noted, indicates that she married the applicant’s son in August 2014 and did not move in with the applicant and her husband until after the marriage. The evidence suggests that the applicant and Ms Arif and Syed Adeel Rizvi resided together from August 2014 until the applicant’s departure to Australia in January 2016. The evidence as noted indicates that the applicant resided in the premises in Nazimabad rent free.  The applicant claims that this long term arrangement changed after Ms Arif and her son married and Ms Arif moved into the household.  The Tribunal finds that in the absence of financial documents that establish the payment of rent or the remittance of rent to the applicant’s brother in the United Kingdom that the affidavit evidence of a rental agreement from January 2016 is not corroborative of the applicant being dependent on the family head at time of visa application.

6. The evidence before the Tribunal indicates that Ms Arif arrived in Australia on 21 December 2016. She advised that after she and her husband arrived in Australia they resided with her brother-in-law in West Hoxton until March 2017 at which time they relocated to Melbourne to the suburb of Truganine. The evidence of Ms Arif at hearing was that her mother-in-law had never been to Melbourne. The applicant attempted, during the provision of this evidence, to contradict her daughter in laws evidence stating that she had been to Melbourne whilst Ms Arif was visiting Pakistan between October 2017 and December 2017. The evidence before the Tribunal clearly indicates that since the applicant’s arrival in Australia in January 2016 that she has predominantly been residing with her son and daughter-in-law in West Hoxton New South Wales and has not been residing with Ms Arif and her son Syed Adeel who have in fact been residing in another state, namely Victoria. No evidence has been provided that Ms Arif and her husband have been providing financial support to the applicant and the evidence indicates that this financial support has been coming from Syed Rizwan.

7. The evidence when cumulatively considered leads the Tribunal to find that the applicant has not been usually resident in the family head (Ms Arif’s) household and has not been dependent on the family head.  The evidence indicates that the applicant has been resident in the home of her son Syed Rizwan in West Hoxton NSW since January 2016 to date.  The evidence indicates that Ms Arif resided with the applicant and Syed Adeel from August 2014 until the applicant’s departure to Australia in January 2016.  The evidence indicates that the applicant had resided in the home of her late parents rent free along with her late husband and that it was only after the marriage of her son Syed Adeel to Ms Arif that any form of rental agreement came into play and this suggests that the purported agreement (particularly in the absence of evidence of the payment of regular rental) was contrived.  The Tribunal notes that the applicant’s son, Syed Rizwan, is a settled Australian citizen having resided in Australia since 2006 and that he has provided accommodation and financial support to his mother since her arrival in January 2016.  He also provided evidence for the purposes of her visitor visa namely that he would be the primary source of financial support for his mother during the duration of her 6 month visit .  The Tribunal finds that the evidence provided in support of the visa application does not provide evidence of a rental agreement being in existence since the marriage of Ms Arif to Syed Adeel in August 2014 and of the applicant being dependent on Ms Arif as family head at time of visa application.  For these reasons the Tribunal finds that the applicant is not usually resident in the family heads (Ms Arif’s) household and is not dependent on the family head.

   DECISION

8. The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa

   John Cipolla
   Senior Member