Ukash (Migration)

[2021] AATA 3413

Ukash (Migration) [2021] AATA 3413 (11 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Okasha Ukash

VISA APPLICANTS:  Ms Aziza Yusuf Muhammed
Ms Asiya Yusuf Muhammed

CASE NUMBER:  1809819

DIBP REFERENCE(S):  BCC2017/3473755

MEMBER:Stephen Conwell

DATE:11 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first-named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.311 of Schedule 2 to the Regulations; and

·cl.309.321 of Schedule 2 to the Regulations

Statement made on 11 August 2021 at 4:24pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 820 (Partner (Provisional)) – members of the family unit – wholly or significantly financially reliant upon the primary visa applicant – primary visa applicant was the family head – care and responsibility of younger sisters – formal adoption – late issuance of the birth certificates – regular money transfers – decision under review remitted     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 309.311, 309.321; rr 1.04, 1.05, 1.12

CASES

Al Naqi v MIAC [2007] FMCA 874

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 29 January 2018 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first-named visa applicant (the visa applicant) applied for the visa on 22 September 2017 on the basis of their relationship with their sponsor, the review applicant, who married their older sister, Ms Zemzem Muhammed, the primary visa applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicants did not satisfy cl.309.311 because they were not satisfied that the visa applicants were wholly or significantly financially reliant upon the primary visa applicant. In cumulative consideration of the above information, the delegate was not satisfied that any of the visa applicants were a ‘member of the family unit’ of the primary visa applicant and each did not satisfy the criteria set out in sub regulation 309.311.

4. The review applicant (sponsor) provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

5. The hearing was held during the Coronavirus (COVID-19) pandemic. Having regard to the nature of the review and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of telephone hearing. The Tribunal exercised its discretion to hold the hearing by telephone. The parties raised no objections as to conducting the hearing by telephone.

6. The parties participated in the hearing by telephone on 3 August 2021 to give evidence and present arguments. The Tribunal received oral evidence from the sponsor, the primary visa applicant and from two witnesses, Mr Ahmad Moussa and Mr Tedla Wanaw.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages. The interpreter attended the hearing by telephone.

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

   Background

9. According to the evidence on the Departmental and Tribunal files, as  well as the oral testimonies of the parties, the sponsor arrived in Australia in May 2000 on a [permanent] visa. In May 2008 or 2009 the sponsor sponsored his son from a previous relationship to come to Australia.

10. The primary visa applicant was born in the village of Bale, Ethiopia on 25 September 1988. She has two siblings, her sisters, the visa applicants. Their parents were subsistence farmers in Bale. According to the death certificates produced in evidence, Their father died, possibly of malaria, on 23 September 2003; their mother died of ill health on 16 August 2008.

11. Upon their mother’s death the primary visa applicant and her younger sisters, the visa applicants left Bale in 2009 for the city of Adama, where they were able to stay in the home of a family friend. They stayed there rent-free for two months until the primary visa applicant found work as a house-cleaner and was then able to pay a modest rent for the one room that the three of them shared. Her income was the only means by which the three sisters were able to pay for their rent, food and other basic living expenses. The primary visa applicant confirmed at hearing that they have no uncles or aunts or any other immediate family.  This arrangement continued until 2016, when the primary visa applicant married the sponsor and they found their own accommodation for themselves and the visa applicants moved into.

12. The parties began communicating by telephone in early 2015. On 28 May the sponsor travelled to Ethiopia to meet the primary visa applicant for the first time and to further their plans for marriage. The sponsor and primary visa applicant married on 27 June 2016 in Adama, Ethiopia. After the marriage, the sponsor lived with the primary visa applicant and her two sisters, the visa applicants for approximately 14 months before returning to Australia. During his stay the parties had their first child. During his stay in Adama, the household’s expenses were met by the sponsor through savings that he had accumulated by working in Australia.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether, at the time of application on 22 September 2017, the visa applicants were, and are, members of the family unit of the primary visa applicant, Ms Zemzem Muhammed. This is both a time of application criteria and a time of decision criteria.

    Who is the ‘family head’ in this case?

14. In this case, Ms Zemzem Muhammed — not the sponsor — is the so-called ‘family head’. This is because cl.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.

15. The Tribunal finds that the family head in all reasonableness was effectively the primary visa applicant at the time of application and at present.  

16. The Tribunal has considered the visa application forms, and the visa applicants are listed as visa applicants in the form and made a combined application with the primary visa applicant.

17. Based on the visa grant notice, the primary visa applicant has been assessed as satisfying the criteria in subdivision 309.21. The Tribunal accepts the primary visa applicant was granted a visa, on the basis she met the requirements of the temporary visa subclass 309.

18. The Tribunal notes that the Department did not request a DNA test of the visa applicants prior to its decision to refuse the visa applications. The decision record notes that  birth certificates of the three applicants are the only evidence submitted to confirm siblingship. The delegate expresses concern that the birth certificates were issued in October 2016, a few weeks prior to the issuance of a Court order in November 2016, conferring guardianship to the primary visa applicant over the visa applicants who were minors at that time.

19. In his statutory declaration deposed on 16 July 2021, the sponsor addresses this concern:

    In the traditional Ethiopian context, and as a person within this cultural bond, my wife has been morally obligated to take full responsibility and raise [the visa applicants], whose fate has fallen under her responsibility. And she has been and continue(sic) to be performing what is normally considered as the discharge of her family responsibility, as well as moral and cultural duty.

20. Based on the details provided as part of the visa application, the sponsor’s statutory declaration and upon the oral testimony of the sponsor and the primary visa applicant at hearing, the Tribunal accepts that the visa applicants are the biological siblings of the primary visa applicant.

21. The Tribunal accepts the documented and oral evidence of the parties that the applicants’ father died in 2003, with their mother dying in 2008.

22. The requirements of cl.309.311 are that the visa applicants are members of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21.

23. The visa application, lodged 22 September 2017, identifies the visa applicants’ dates of birth as being 20 November 2000 and 1 February 2002, respectively. The Tribunal accepts the identification details provided for the visa applicants as part of the visa application, and accepts the applicants were 16 and 14 years old respectively at the time of application.

24. The Tribunal accepts the documented and oral evidence of the parties and determines that neither of the visa applicants were engaged to be married or had a partner or spouse at the time of application. It is satisfied that the visa applicants had not turned 18 years at the time of application, and they are the biological sisters of the primary visa applicant.

25. The Tribunal notes the issue raised in the decision record in determining the applicants to not be dependent children of the primary visa applicant within the meaning of r.1.05A at the time of decision. The issue seems to be the delegate’s concern that the only proof of siblingship is the issuance of the birth certificates in October 2016, a few weeks before the Court order granting guardianship of the visa applicants to the primary visa applicant. The lack of further proof and the timing of the issuance of the birth certificates were of concern to the delegate. In the decision record there is no mention

26. The Tribunal accepts the documented and oral evidence of the parties that the visa applicants, with the death of their parents in 2003 and 2008 respectively, had no other older relatives who could provide them with care, and it fell, as is the custom of the region and in many parts of the world, for the eldest sibling or other near relative to take on the responsibility as care-giver for any minors.  In this case that responsibility fell to the primary vis applicant, who was 19 at the time of the mother’s death, with the siblings being 7 and 6 years of age respectively.

27. The Tribunal accepts the oral evidence of the primary visa applicant that the three siblings have no other relatives, therefore with the death of their mother in 2008, the care and responsibility of her younger sisters came to rest solely with the primary visa applicant.  

28. The Tribunal accepts the documented and oral evidence of the parties that the sponsor and primary visa applicant, before their marriage on 27 June 2016 in Ethiopia, agreed that the two younger siblings would continue to be the responsibility of their elder sister and that the parties intended to apply for the primary visa applicant to live in Australia with the sponsor, with the visa application to include the two younger siblings as visa applicants. 

29. The Tribunal accepts the documented and oral testimony of the parties that the primary visa applicant has formally adopted her two younger siblings. It accepts as genuine the order of the District Court of Adama, dated 14 November 2016 formalising the adoption (Department file fols.121/122 original and fols.125/126 English translation).

30. The Tribunal does not share the concerns of the delegate as to the timing of issuance of the birth certificates to the date of the Court order. It accepts the evidence and testimony of the parties that it is customary in Ethiopia and indeed in many other parts of the world, that with the loss of parents the oldest sibling takes on the responsibility of caring for the younger siblings. The Tribunal accepts that in impoverished countries where there is high illiteracy and poor record-keeping, significant life events such as births, deaths, marriages and in this case, adoptions, often occur with no formal notification or public registration. In this case the parties sought to have a formal issuance of the birth certificates and of the Court order, precisely with the requirements of the Partner visa application in mind. For this reason the Tribunal accepts the parties’ explanation for the timing of the issuance of the birth certificates and of the Court order, and finds no cause of concern with it.

31. The Tribunal accepts the documented and oral evidence of the parties that the primary visa applicant was the sole member of the family working and that it was the income from her house-keeping and cleaning work that provided the only income to meet the basic needs of the three siblings.

32. The Tribunal accepts the documented and oral evidence of the parties that the primary visa applicant, in being granted the Partner visa while the visa applicants were refused, recognised that whilst she and the parties’ young child needed to accept the visa grant and travel to Australia to join the sponsor, she did not intend to forsake her guardianship responsibilities to her sisters.  The primary visa applicant and the parties’ first child arrived in Australia on 7 April 2018.

33. The Tribunal accepts the documented and oral evidence of the parties that the sponsor and primary visa applicant have continued to send money to Ethiopia for the needs of the visa applicants. The parties claim that these funds are the sole source of the money by which the visa applicants meet their basic needs of food, clothing and accommodation. There is evidence of regular money transfers from the parties in Australia to the visa applicants, dating from May 2018 – July 2021, which the Tribunal accepts as genuine.

34. The requirements of cl.309.321 are that the visa applicants continue to be members of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass (Partner provisional) visa.

35. In assessing whether the visa applicant is financially dependent upon the primary visa applicant, the Tribunal has regard to the broad practical principles espoused in the case of Al Naqi v MIAC [2007] FMCA 874, and considers the financial support provided by the sponsor and primary visa applicant, is evidence of the visa applicants’ financial reliance upon the sponsor and primary visa applicant.

36. The Tribunal has considered the evidence submitted and determines that at the time of this decision, and for the period before and after the visa application, the visa applicants are and have been wholly reliant on the sponsor and primary visa applicant for financial support to meet their basic needs of food, clothing and shelter.

37. The Tribunal has considered the documented and oral evidence and determines that at the time of this decision, and for the period before and after the visa application, the visa applicants have been customarily adopted by the primary visa applicant, and meet the provisions of r.1.04(1)(c).

38. The Tribunal determines both visa applicants to be dependent on the primary visa applicant within the meaning of r.1.05A.

39. The Tribunal notes that at the time of this decision, Aziza, the eldest visa applicant is 20 years of age and her sister, Asiya, is 19 years of age. The Tribunal determines that the visa applicants are dependents of the sponsor and primary visa applicant in this matter within the meaning of r.1.12(2)(b)(ii) and accordingly meet the criteria for being a member of the family unit of the primary visa applicant.

40. The Tribunal determines that each of the visa applicants continue to be a member of the family unit of a person who is now the holder of a Subclass 309 visa and accepts that each of them meets the requirements of cl.309.321(a). Therefore, the visa applicants meet the requirements of cl.309.321.

41. Given the findings above, the appropriate course is to remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

42. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first-named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.311 of Schedule 2 to the Regulations; and

    ·cl.309.321 of Schedule 2 to the Regulations.

    Stephen Conwell
    Member