Sharifi (Migration)

[2020] AATA 5378

Sharifi (Migration) [2020] AATA 5378 (23 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Murtaza Sharifi

VISA APPLICANT:  Master Khoda Dad Rasooli
aka Khuda Dad

CASE NUMBER:  1714064

DIBP REFERENCE(S):  BCC2015/1903141

MEMBER:Nicholas McGowan

DATE:23 November 2020

PLACE OF DECISION:  Sydney

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

Statement made 23 November 2020 at 10:29am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner) – member of family unit – young adult brother of primary visa applicant – undocumented refugee in third country – wholly or substantially dependent for substantial period – dependent on review applicant (brother-in-law), not on primary visa applicant (sister) – lack of specificity of evidence – regulations distinguish between family head and spouse – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 347, 356(3), 359AA, 366(1)

Migration Regulations 1994 (Cth), rr 1.05A(1)(a), 1.12(1)(e)(iii), Schedule 2, cl 309.311

CASES

Alimi v Minister for Immigration [2007] FMCA 1520

Al Naqi v Minister for Immigration [2007] FMCA 874

WRITTEN STATEMENT OF DECISION AND REASONS

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

2. On June 29, 2015 the visa applicant applied (as a secondary applicant attached to his sister’s partner visa application) to the Department of Immigration and Citizenship for a Partner (Provisional) (Class UF) visa as a member of the family unit of the review applicant’s wife, Mrs Simagul Sharifi born June 1995 (the visa applicant’s claimed biological full-sister), who was the primary applicant.

3. On May 11, 2017 in the United Arab Emirates, a delegate for the Minister, refused the visa application for the secondary applicant (referred to in this review as the ‘visa applicant’) under review as they did not satisfy cl.309.311 of Schedule 2 to the Migration Regulations.

4. The delegate found the secondary applicant (visa applicant) did not satisfy cl.309.311 because he did not satisfy the lawful requirements as a member of the family unit of the primary applicant at the time of application.

5. The delegate notified them of the decision, and their review rights, in a letter emailed May 11 2017. The review applicant applied to this Tribunal on 30 June 2017 for review of that decision.

6. The Tribunal finds that the delegate’s decision is a reviewable decision under the Act. The Tribunal finds that the review applicant has made a valid application for review under s.347 of the Act.

   REVIEW

7. On the 25 August 2020, the review applicant was invited to appear by telephone before the Tribunal to give evidence and present arguments at a hearing scheduled 14 October 2020.

8. The Tribunal’s invitation to the review applicant to attend a hearing explained that the Tribunal had considered all the material before it relating to the review application but was unable to make a favourable decision on that information alone.

9. Because of the SARS-CoV-2 pandemic, the Tribunal conducted the hearing via telephone. The Migration Act 1958 gives the Tribunal the authority to conduct matters in this way: Section 366(1).

10. Consistent with section 365(3) of the Migration Act 1958 the Tribunal conducted the hearing without opening it to the public as it is satisfied that during the SARS-CoV-2 pandemic it is impracticable to take oral evidence in public. Accordingly, the Tribunal directed that all the evidence from any participant in the review, be taken in private.

11. The review applicant appeared before the Tribunal on 14 October 2020 to give evidence and present arguments. That hearing was adjourned (as the interpreter ‘dropped-out’ of the call), and it was agreed the hearing would resume on 16 October 2020, which it did. At the resumed hearing, the review applicant (his representative), the primary visa applicant, and visa applicant (secondary applicant) attended and provided oral evidence.

12. At the conclusion of the resumed hearing the applicant’s representative requested an extension of time (post-hearing) to provide any further evidence. The representative has since indicated that he has some concerns with regards to the accuracy of the interpretation. While the Tribunal does not share the concern, it nonetheless was only too prepared to provide the applicant’s representative (and the applicant naturally) with any time they requested to review the audio recording and provide any submission, and provide any subsequent evidence or argument(s).

13. Further to the above, the Tribunal granted the applicant until 17 November 2020.

14. At the time of this decision, no request has been received for any additional time. Likewise, no submission, whatsoever, has been received (post-hearing) from the applicant, outside a request for the audio recording and the letter which formed that request, including canvassing the possibility more time may be requested, though none was. Accordingly, given the Tribunal has granted significant time in order to allow the applicant to provide any submission, or evidence and argument(s), and as no further request has been received for additional time, and the time granted to provide additional information has passed, the Tribunal has progressed to make a decision on the review.

15. The Tribunal hearings were conducted with the assistance of an interpreter.

16. The Tribunal also received oral evidence from witnesses (at the hearing held 14 October 2020), who appeared at the request of the review applicant. The Tribunal received oral evidence from the review applicant, the primary visa applicant, Mr Bahram Safdari, Mr Mohammad Hussain Ramazani, Mr Liaqat Amini, Mr Assad Qasimi, and Mr Yaqub Ali Yusefe.  

17. The review applicant is represented in relation to the review by his representative (lawyer).

    RELEVANT LAW

18. Part 309 of Schedule 2 contains secondary criteria that must be satisfied by an applicant who are a member of the family unit of a person who satisfies the primary criteria: cl.309.3.

19. Clause 309.311 provides:

    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.

20. A “member of a family unit” is set out in r.1.12:

    Reg 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

    (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.

21. The word “dependent” is defined in r.1.05A:

    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)    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.

22. This regulation prescribes the objective criteria to be met for dependence to be established. First, r.1.05A(1) stipulates that the person who is claiming to be dependent (the ‘first person’) must be at the time at which consideration is being given, ‘wholly or substantially’ reliant on the other person. Second, that degree of reliance is required to have been for a substantial period immediately before that time. Thirdly, the financial support being provided must be to meet the first person’s basic needs in three respects: i.e. food, shelter and clothing. Lastly, the first person’s reliance on the other person must be greater than his or her reliance on any other person or source of financial support to meet those basic needs.

23. The issue in the present case is whether the visa applicant is dependent on the family head (Mrs Simagul Sharifi) as defined in r.1.05A(1)(a).

24. There is no evidence, or claim (by the review applicant or his representative) before the Tribunal that the visa applicant meets the requirements of r.1.05A(1)(b).

    Hearing into the review held 14 October 2020

25. The review applicant listed a number of witnesses who sought to provide the Tribunal with oral evidence.

26. On occasion where a witness ‘dropped-off’ the telephone line, the Tribunal has invited the review applicant (and his representative) to provide any further evidence in writing, or at the resumed hearing, enabling the Tribunal to consider all and any evidence the review applicant seeks to provide as part of this review.

27. Mr Mohammad Hussain Ramazani is a friend of the review applicant, and stated, the review applicant has been supporting his brother-in-law since his marriage. He told the Tribunal he had helped the visa applicant and primary applicant obtain their passports in Afghanistan as they had “lost” their parents. The witness states he knows the location of where the visa applicant’s father is buried. The Tribunal asked where the visa applicant’s father died? He told the Tribunal he did in their village. The witness told the Tribunal he was with the visa applicant’s father when he passed away, and that he attended his funeral, including the body washing ceremony prior. He said the visa applicant’s father passed away on 2 February 2014. The Tribunal asked how he recalled the date? The witness said because he was there himself, and they were a low-socio-economic family, and known, among the community.  The Tribunal asked whether he notified anybody of the death of the visa applicant’s father. The witness told the Tribunal he called Murtaza to advise him of the visa applicant’s father’s death, which was around 10am in the morning (Afghan time). The witness told the Tribunal he had not been present when the visa applicant’s father had passed-away, though learned of it later. The Tribunal asked the witness to clarify whether he was with the visa applicant’s father when he passed-away, or not, as his earlier evidence indicated to the Tribunal, that he was present. The witness told the Tribunal he was not specifically with the father, but at the funeral, and prior ceremonies, but not in the house with him. The Tribunal enquired as to how he learned about the passing. The witness told the Tribunal Ismael told him. The Tribunal asked who Ismael was to the family, and visa applicant’s father. The witness told the Tribunal that the visa applicant’s father passed away in Ismael’s house. The witness told the Tribunal that was correct, and that even when they travelled to obtain the visa applicant and primary applicant’s passport’s, they stayed in Ismael’s house. The witnesses also told the Tribunal he helped them with their passports and birth certificates for their visa applications. The Tribunal asked the witness to elaborate on the “support” he provided? The witness told the Tribunal “The didn’t know how to apply for the document and I helped them.” The Tribunal asked the witness to elaborate and provide any detail with regards to the help he provided the applicants, as the review applicant’s agent indicated further details could be offered from the witness. The witness said he helped the applicants obtain their passports and Nikah documentation in 2015, and in 2016 he helped them obtain their birth certificates and warrant (the witness described this ‘warrant’ as a process to inform who they lived with and what they did). The Tribunal asked how they obtained the passports if they didn’t obtain the birth certificates until a year later? The witness did not respond. The Tribunal asked the interpreter to repeat. The telephone line was unresponsive.    

28. Mr Bahran Safdari was asked by the Tribunal what oral evidence he wished to provide. The witness told the Tribunal he witnessed the visa applicant’s funeral. He told the Tribunal the family are of a low socio-economic standing. The Tribunal asked how well did he know the family? The Tribunal was then unable to make further contact with the witness.

29. Mr Liaqat Amini was asked what oral evidence he would like to provide the Tribunal. The witness told the Tribunal that he learned the review applicant’s father-in-law had passed when told by the review applicant in Australia. The witness said he cannot remember the exact time, but states it was in 2014.  The Tribunal asked whether he was with the review applicant when the review applicant learned of his father-in-law’s death, or later. The witnesses said he noticed later, and sent his condolences, to the review applicant later. The Tribunal asked whether he learned about the father-in-law’s passing at a dinner, for example? The witness told the Tribunal he can’t recall what he was doing, but that the review applicant called him and told him. The Tribunal explained that in the Hearing response form provided to the Tribunal as part of the review, ahead of the hearing held 14 October 2020, the review applicant wrote that the witness was told of his father-in-law’s passing-away at a dinner, attended by other friends. The Tribunal asked the witness to explain the differences in the account. The witness said he does not exactly remember what happened at that time, and he “may have been in the toilet or something at that time”.

30. Mr Assad Qasimi was asked what oral evidence he would like to provide to the Tribunal. The witness told the Tribunal he was at a party where the review applicant announced the passing-away of his father-in-law. The Tribunal asked what the “party” or event was? The witnesses said it was an event where people come together and eat. The Tribunal asked what time of year the event was. The witness answered, February, and explained that he remembers it was February at that time.  The Tribunal asked who else was present at this event?  The witness said there was 20-30 people at the event.

31. Mr Yaqub Ali Yusefe was asked what oral evidence he would like to provide the Tribunal. He told the Tribunal he was invited to the review applicant’s house, and he had heard about the review applicant’s father-in-law, and his death, at that time. The witness said between 30-40 people were there that night. The Tribunal asked why 30-40 people were at the review applicant’s house? The witnesses said when somebody comes to Australia, the community come together, and sometimes they simply come together as part of the community.

32. The Tribunal then took oral evidence from the primary visa applicant. She told the Tribunal her brother is left alone in Pakistan and does not have anyone else there. She said they support him. The Tribunal asked whether she recalled when she applied for the visa? The witness told the Tribunal she applied with her brother (together for the visas) in 2015. The Tribunal asked the primary applicant to detail how her brother was dependent upon her at the ‘time of application’ and a substantial period prior. The witness told the Tribunal her husband provided financial support to her and she supported her brother. The Tribunal asked for detail in respect to the level of support. The witness told the Tribunal the review applicant helped them according to their needs, monthly $500, $300, $1000. The Tribunal asked whether the witness could elaborate on the precise timing for the amounts described above. The primary applicant said she doesn’t recall precisely what time or what hours, but stated he has helped them. The Tribunal asked where she and her brother were living at that time? The primary applicant provided an address. The Tribunal asked who’s house they lived in at that time. The witness said she was living in a rented home at that time, which was 15,000. Pakistani currency, for one month. The Tribunal asked whether anybody else lived in the house with herself. The witness said herself, her brother, and five people (the landlord’s family) lived at that house. The Tribunal asked the names of the landlord and his family. The witness told the Tribunal their names, Hajimir, Amina, Marzia, Zahra and Ali (the last three the couple’s children). The Tribunal asked the witness when had she first learned her father passed away. The witness said the review applicant notified her. The Tribunal enquired whether a relative had notified her first. The witness said that “No”. The Tribunal asked the witness when did her mother pass away. The witness said 2002. The Tribunal asked again for the witness to confirm the date. The Tribunal asked the witness how did she recall it was 2002. The witness told the Tribunal her father had told her she’d passed away in 2002. The Tribunal asked whether she knew, or was told, what her mother passed away from? The witness said her father said her mother passed-away because of diabetes. The Tribunal asked whether she and her brother were working or studying at the ‘time of application in June 2015. The witness told the Tribunal they were both studying. The Tribunal asked whether the witness had any other brother’s or sister’s, she told the Tribunal she had a brother Reza, who is “lost”, “missing”. The Tribunal asked, what did she mean lost or missing? The witness told the Tribunal her brother went to Iran and on the way he got lost and they don’t know where he is now. The Tribunal asked when the last time was she had any contact with him? The witness said in 2013, and after that she hasn’t had contact. The Tribunal asked how she obtained a passport f she didn’t have a birth certificate or Tazkria? The witness said she obtained her Tazkira in 2013 with her father. The witness says she obtained her passport later, after her father had passed away.

33. The Tribunal invited the review applicant to provide his oral evidence. The review applicant told the Tribunal he is supporting his wife and her brother since early times, including their education. The review applicant says, they [the applicants] have nobody else, and seeks to bring his brother-in-law (the visa applicant), here (to Australia). 

34. At this point in the hearing, the interpreter fell-out of the call. The Tribunal discussed with the review applicant her preferred path-forward, providing the option of adjourning the hearing for a later time, or granting the review applicant and any other witnesses to provide evidence in a submission to be provided post-hearing. The review applicant agent expressed a preference to adjourn, which the Tribunal granted. The Tribunal undertook to resume the review on Friday afternoon 16 October 2020, and take any remaining evidence form the review applicant, the primary visa applicant, and again make contact with the vis applicant (and invite him to provide any oral evidence). The review applicant’s agent would also be afford the opportunity to make any submission at the resumed hearing. Post-hearing, the Tribunal wrote to the review applicant (through his agent) and invited the review applicant to provide any written submission (statement, statutory declarations and so forth) from any witness who appeared before the Tribunal hearing of 14 October 2020, but for whatever reasons, did not conclude their evidence. This would allow the Tribunal to consider any, and all, oral evidence (from any witness) the review applicant intends the Tribunal consider.

    Resumed hearing into the review held 16 October 2020

1. The Tribunal resumed the adjourned hearing into the review, which commenced on 14 October 2020.

2. The review applicant’s representative raised concerns with respect to the accuracy of the interpretation of the previous interpreter, particularly in respect to one of the review applicant’s witnesses oral evidence, Mr Ramazani, but not limited to his alone. Having discussed the matter with the review applicant’s representative at the resumed hearing, the Tribunal granted the review applicant (and his representative) more than 28 days, post hearing, to  undertake any examination of any and all the oral evidence provided and make any submission(s), including providing any statement from any of the witnesses clarifying or correcting what they believe they said, or what they believe was mis-interpreted, or simply not captured as accurately/or in as much detail, as they may have desired. The Tribunal also explained that the review applicant’s representative was at liberty to obtain the full-audio recordings from both the hearing held 14 October 2020, and the resumed (and final) hearing held 16 October 2020, and should apply as appropriate through the Tribunal’s Registry for such access, which would be granted. The Tribunal made plain that is was prepared to grant the review applicant the time he and his representative needed to make any and all submissions, both in respect to the oral evidence, but also the time of application criteria, and the time of decision criteria, which must be satisfied under law. The review applicant representative sought 28 days to provide the final submission and any evidence, and slightly more than that period was granted (close of business 16 November 2020).

3. The primary visa applicant provided additional oral evidence. The Tribunal asked the primary visa applicant about a statement she provided to the department previously (found at folio 96 of the Departmental file) in which she claimed her father died in “2014”, while her mother in “2012”. This is inconsistent with her previous and other evidence which has consistently claimed her mother died in 2002. The applicant attributed to the date difference to an error, perhaps in translation, though the Tribunal notes the statement was provided by her.

4. The review applicant provided additional oral evidence. The review applicant told the Tribunal he had spoken with one of his witnesses, Mr Amini, from who provided oral evidence et the hearing of 14 October 2020, and explained to the Tribunal that Mr Amini had been in the “toilet” at the time he told the dinner (or event) that his father-in-law had passed away. The Tribunal understood this claim, but recalled for the review applicant that his witness had told the Tribunal he had been told of the review applicant’s father-in-law’s death, by the review applicant, over the telephone, and not at some dinner (or event). The review applicant was unable to provide a coherent response to this, other than to repeat that his witness had been at the ‘dinner’ (or event).

5. The Tribunal took oral evidence provided by the secondary applicant. The secondary applicant told the Tribunal his father died in 2014. He told the Tribunal he is dependent upon them. The secondary applicant told the Tribunal he is 18 years old. The secondary applicant said he was a refugee and had no documents to be in Pakistan. The secondary applicant told the Tribunal he is not married and has no partner. The secondary applicant told the Tribunal he is staying with a family which his sister pays for. The secondary applicant told the Tribunal his other expense for food and clothing are met by money from the review applicant. The secondary applicant said it depends how much money he gets according to his expenses. The Tribunal asked how long he had been receiving financial support form the review applicant. The secondary applicant told the Tribunal he’s been receiving financial support from the day his father passed away. The Tribunal asked how his family was surviving prior to the support of the review applicant. The secondary applicant says that prior, his family were on survival mode, literally to survive. The secondary applicant says his situation in unknown, and the only family he has is his sister, who he wishes to be with. Tribunal asked whether he travelled with his sister to obtain his Tazkira or passport?  The secondary applicant said he obtained the Tazkira with his sister in 2013, before obtaining the passport.

   Section 359AA of the Act

6. The Tribunal, having confirmed all the participants had provided the oral evidence they sought to, outlined for the review applicant circumstances in which it is required to put information formally to him under the Act. Though the information is covered in the delegate’s refusal Decision record dated 11 May 2017, which refers to an interview conducted with the primary visa applicant on 19 April 2017, because notes/a-transcript of that interview is present on the Departmental file, the Tribunal is obliged to put the relevant information. The Tribunal put to the review applicant the relevant content of the interview conducted between the Departmental Officer and the primary visa applicant on 19 April 2017. In that interview, the notes record the primary visa applicant told the Departmental Officer her father was alive when she obtained the Tazkira and passports in 2015. The primary vis applicant also told the Departmental Officer her father had been with her and helped her obtain both documents. The primary visa applicant’s evidence, as noted by the Departmental Officer based on his interview with her, conflicts with the other oral and written evidence (and statements) from the primary vis applicant in which she claims her father had died in 2014, a year prior to her obtaining her passport. The Tribunal made clear it has not made it’s mind about the information. The review applicant was given the opportunity to comment on or respond to the information. The Tribunal explained to the review applicant the relevance of the information to the criteria under review. The review applicant, after consulting his representative, will comment on, or respond to, the information as part of any submission made his representative (before the close of business on 16 November 2020).

7. The Tribunal considered the other documents on the Departmental file. These included various assessments, and working notes, from departmental officers. As none of the information contained in the other documents present on the file is considered adverse by the Tribunal in this review, none of the information contained in these documents is required to be put formally. In coming to this finding, the Tribunal notes the review applicant had provided a copy of the delegate’s refusal Decision record of 11 May 2017 to the Tribunal as part of the review, and therefore is not required to put that information contained in that record formally (with some exceptions, such as the information put discussed above under section 359AA of the Act).

   FINDINGS AND REASONS

   Consideration of ‘time of application’ criteria

8. The combined effect of the operation of cl.309.311, r.1.12 and r.1.05A is that in this case the “family head” is the primary applicant, Mrs Simagul Sharifi. The Regulations distinguish between a person and his or her spouse. Therefore, the secondary visa applicant must establish he is dependent on Mrs Sharifi (as defined by Regulation 1.05A) in order to satisfy the provisions of clause 309.311 and which is required for the grant of a Partner (Provisional) (Class UF) visa.

9. Regulation 1.05A requires that the secondary visa applicant must be wholly or substantially reliant on Mrs Sharifi for financial support to meet his basic needs for food, clothing and shelter. It also requires that this degree of reliance has to have been for a substantial period immediately before the time that the application is being determined, and that such reliance of financial support on Mrs Sharifi is greater than his reliance on any other person or source of financial support.

10. Following the Full Federal Court decision of Huynh v MIMIA 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.

11. Even were the Tribunal to accept the review applicant and applicants claims the secondary visa applicant’s father died in 2014, their collective evidence is that Mr Sharifi has been financially supporting his brother-in-law (the secondary visa applicant) ever since his father died in 2014.  The secondary visa applicant told the Tribunal that since the day of his father’s death, Mr Sharifi has supported him financially for food, clothing and shelter, through his sister (the primary visa applicant).

12. Although the secondary visa applicant claims to have lived for a period of time with the primary visa applicant and review applicant (prior to the primary visa applicant’s departure for Australia) the Tribunal is unable to find that the secondary visa applicant was wholly or substantially reliant on her. The evidence of Mr Sharifi and Mrs Sharifi is unequivocal. Mr Sharifi has been financially supporting the secondary visa applicant ever since he married his sister and continues to do so. As Mrs Sharifi has never had an income (including at the time of application), it cannot be said that the secondary visa applicants’ reliance on her was greater than any reliance by the secondary visa applicant on Mr Sharifi for financial support to meet his basic needs for food, clothing and shelter.   

13. The Tribunal understands Mr Sharifi’s submission that as Mrs Shairif was his wife, and because she is part of the family unit, his support should be treated as her support and that what the husband earns is their mutual income. Having considered the evidence, the Tribunal is not satisfied that the money provided to Ms Sharifi is her own income.

14. However the Regulations and Case law are clear.  The Federal Magistrates Court of Australia in Alimi v Minister fir Immigration & Anor [2007] FMCA 1520 noted:

    15.      The Regulation in paragraph 1.12(1)(e) distinguishes between the family head and the spouse of the family head but says that a relative of either, who meets the subsequent conditions, is eligible for the relevant visa. However, the Regulation in sub-paragraph 1.12(1)(e)(iii) does not include a person who is dependent on a spouse of the family head. It is confined to a person who is dependent on the family head.

    16.      The applicant’s interpretation of the Regulations requires the court to read in at the end of subparagraph 1.12(1)(e)(iii) the words, “or a spouse of the family head.” I do not consider that is permissible, under any principle of statutory construction. In paragraph 1.12(1)(e) of the Regulations, the drafter had clearly considered that the family head was distinct from his or her spouse. The drafter chose to include a spouse in the opening words of paragraph 1.12(1)(e) but not in sub-paragraph 1.12(1)(e)(iii). There is no reason for the court to conclude that that choice was anything other than deliberate or that the words of sub-paragraph 1.12(1)(e)(iii) do not reflect the intention of the drafter. In the circumstances, I see no basis for reading in the words required by the applicant’s argument.

15. This decision is consistent with other decisions such as Al Naqi v Minister for Immigration & Anor [2007] FMCA 874.

16. The Court in Alimi rejected an argument that it was sufficient for the purposes of r.1.12(1)(e)(iii) if the visa applicant was dependent on his brother (the sponsor) rather than his brother’s spouse (the primary visa applicant/family head).  The Court noted that the opening words of r.1.12(1)(e) distinguish between the “family head” and a “spouse of the family head”, but r.1.12(1)(e)(iii) requires only that the person be dependent on the “family head”.  The Court found there was no textual basis to read in, at the end of r.1.12(1)(e)(iii), the words “or a spouse of the family head”.

17. While it is noted that in some circumstances, it may be open to the Tribunal to make a factual finding that a person is “dependent” on the family head, notwithstanding that funds are being provided by the family head’s spouse, the Tribunal has not done so in this matter because of the paucity of the financial evidence made available by the review applicant to the Tribunal in this regard. Only broad descriptions of varying quantum’s have been outlined by the primary visa applicants and review applicant. The details of any financial support provided lack any specificity (including any actual dates or amounts) except for one piece of documentary evidence provided to the Department (previously) in the form of a statement dated 2 December 2016, from Yasin Qasemi, claiming transactions in the amount of $450 per month since April 2014 (though with accompanying evidence the transactions actually occurred, when they occurred, or any proof they were received).

    Post-hearing submissions

18. None have been received (as discussed in detail above).

    FINDINGS

19. Based on the above reasons, the Tribunal finds that the secondary visa applicant is not dependent on Mrs Sharifi.  It follows that r.1.05A is not satisfied.

20. As the secondary visa applicant does not meet the definition of being a dependant of Mrs Sharifi for the purposes of Regulation 1.05A, the secondary visa applicant does not meet the criteria of a member of Mrs Sharifi’s family unit for the purposes of Regulation 1.12.

21. Further to the above, the secondary visa applicant does not satisfy cl.309.311 at the time of application.

22. As the ‘time of application’ criteria has not been met, the Tribunal is not required to proceed and consider the time of decision criteria.

    DECISION

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