Zargar (Migration)

[2017] AATA 2135

Zargar (Migration) [2017] AATA 2135 (6 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Zamin Zargar

VISA APPLICANT:  Miss Kaniz Zargar

CASE NUMBER:  1617474

DIBP REFERENCE(S):  BCC2015/1315020

MEMBER:Peter Emmerton

DATE:6 November 2017

PLACE OF DECISION:  Adelaide

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

·cl.309.311 of Schedule 2 to the Regulations

·cl.309.321 of Schedule 2 to the Regulations

·r.1.05A

Statement made on 06 November 2017 at 2:08pm

CATCHWORDS
Migration – Partner (Provisional) (Class UF) – Subclass 309 (Partner (Provisional)) – Financial impact on the sponsor – Applicant wholly or substantially reliant on the sponsor

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.05A, r 1.12, cl 309.311, cl 309.213, cl 309.321

CASES

Huynh v MIMA [2006] FCAFC 122

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 18 September 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 applicant applied for the visa on 4 May 2015 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the secondary criteria include cl.309.311 and 309.321.

3. The delegate refused to grant the visa on the basis that the secondary visa applicant did not satisfy cl.309.311 and 309.321 because the secondary visa applicant did not meet the requirements for dependency on the primary applicant and as such she was not a member of the family unit of the primary applicant.

4. The review applicant and sponsor, Mr Zamin ZARGAR and the primary applicant Ms Sadiqa DANESHY, appeared before the Tribunal on 31 October 2017, to give evidence and present arguments. The Tribunal also received oral evidence from a witness, Ms Kabali, the sponsor’s carer, at the hearing.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the secondary visa applicant (Kaniz ZARGAR) is “a member of the family unit” of the primary applicant (pursuant to reg1.12(1)(b)), and whether she is dependent (pursuant to reg1.05A) on the primary visa applicant or the spouse of the primary visa applicant, namely the sponsor.

8. The Tribunal has considered the documentary evidence provided to the Department and the Tribunal. The Tribunal has had the benefit of taking oral evidence from the sponsor and the primary applicant, in the hearing, and verbal evidence from one witness, the carer of Mr ZARGAR. The Tribunal has considered all the aspects of the relationship.

9. In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in doing so, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal, in their particular circumstances.

10. The Tribunal found the primary applicant and witness, who is the long-time carer of the sponsor, very credible. They were candid with their responses to the Tribunal’s questions and no attempt was made to avoid directly answering questions that were put to them. The Tribunal notes that the sponsor is in very bad health and the medical evidence presented left the Tribunal in no doubt that full-time assistance was necessary, in order to facilitate the sponsor’s day to day life activities and ongoing safety. The current carer has been looking after the sponsor for five years.

11. The delegate, for the purposes of their decision record, accepted that the secondary applicant made a combined application with the primary applicant.  The primary applicant is a person who claims to satisfy the primary criteria in sub division 309.211. (No decision had been made at the time of the delegate’s decision. Subsequent to the decision the primary applicant was granted the visa and is currently residing with her husband, the sponsor, in Australia). The delegate also accepted that the sponsorship referred to in clause 309.213 of the person who satisfies the primary criteria includes the sponsorship of the secondary applicant.

12. The Tribunal therefore needs to consider whether the secondary applicant is a member of the family unit of the primary applicant as defined in regulation 1.12(1).

13. The delegate acknowledged the relationship between the primary applicant, sponsor and secondary applicant as a parent/child relationship respectively. The Tribunal is satisfied on the evidence before it that this assessment is correct and therefore is satisfied that the secondary visa applicant is the child of the primary applicant and the sponsor.

14. The delegate placed great weight on the evidence presented during interview with the primary and secondary applicant, which remained consistent with information presented in the application. The delegate accepted that the secondary applicant is single, not engaged and resides in the same household as her mother, the primary applicant. The Tribunal is satisfied on the evidence before it that this is a correct assessment.

15. In considering sub clause 1.12(1)(b), and whether the secondary applicant is dependent on the family head, the Tribunal has taken into account the provisions set out in regulation 1.05A

    ·     Reg 1.05A      Dependent

    1.05A      (1)      Subject to sub-regulation (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.

16. It has not been claimed that the secondary applicant’s claim relates to 1.05A(1)(b), therefore the Tribunal will turn its mind to 1.05A(1)(a).

17. The delegate believed that the primary applicant was substantially reliant upon the income provided by the secondary applicant through her tailoring. This amounted to 20,000 Pakistan rupees a month according to the delegate’s account and the interview with the primary applicant and secondary applicant’s transcript. The primary applicant and sponsor state, in written statements, that this is not correct. The Tribunal questioned the primary applicant and the sponsor during the hearing, in regards to money earned and the capacity of the secondary applicant to earn money through tailoring. Both stated that the secondary applicant was not very good at tailoring and she could not earn much money from such activity.

18. When the primary applicant was questioned by the Tribunal about the original telephone interview with the delegate, she was unable to assure the Tribunal that the interpreter fully understood all that was being said. The primary applicant also stated that although the telephone line was not always very good, she was able to understand most of what was being said. The primary applicant had in a written statement commented that the interpreter may have had some difficulty with their language. The Tribunal has some doubt as to the accuracy of the language interpretation. The Tribunal is not satisfied that the delegate’s statement that the daughter is earning 20,000 rupees a month from tailoring is correct. Even if this figure was accurate it would still be substantially less than the money being provided by the sponsor.  The Tribunal places little weight on this evidence in its decision.

19. The Tribunal has examined receipts for money transfers dated from August 2014 until 23 October 2017 and has taken oral evidence from the primary applicant and the sponsor. The evidence indicates that an amount between 40,000 and 55,000 Pakistan rupees was being sent by the sponsor, when the primary and secondary applicant were living together in Quetta, Pakistan. The amount being sent has been reduced to between 25,000 and 30,000 Pakistan rupees a month for the daughter, as she is now living alone, in one room. The reduction in funds is proportional to the reduced costs of sustaining one person instead of two people. According to the evidence given by the primary applicant at the hearing, the secondary applicant’s monthly living expenses would be approximately 25,000 Pakistan rupees and she has no source of income, other than the money sent by the carer, on behalf of the sponsor.

20. As a single Afghan woman living alone, illegally, in Pakistan, it would be very difficult for the secondary applicant to earn income sufficient to sustain herself. This is due to the unsafe and harsh social conditions, as verified by the DFAT Country Information Report on Pakistan, 1 September, 2017.

21. The Tribunal notes that the sponsor is living on a Government disability allowance and therefore has limited income. The evidence presented shows that he sends a substantial amount of the income he receives to the secondary applicant each month. The Tribunal also acknowledges that this would have an impact on the sponsor and the primary applicant’s financial circumstances. The Tribunal is satisfied that the money being sent each month is what is necessary to sustain the secondary applicant. The Tribunal places substantial weight on this evidence.

22. The Tribunal is satisfied that the evidence presented supports the conclusion that at the time of the application and at the time of the decision and for a substantial period immediately before that time, the secondary visa applicant was wholly or substantially reliant on the sponsor for financial support to meet her basic needs for food, clothing and shelter. And that her reliance on the sponsor was greater than her reliance on any other person or source of financial support for those basic needs.

23. For the reasons stated above the Tribunal is satisfied that the provisions set out in Regulation 1.05A(1)(a) are met.

24. Relevantly, the terms of r.1.05A(1) do not carry with them any implication of necessity or lack of choice. The question is whether as a matter of fact, the first person is relying on the other person for support: Huynh v MIMA [2006] FCAFC 122 at [44].

25. The Tribunal finds that the secondary applicant has provided evidence that she is the ‘dependent child’ of the spouse of the primary applicant pursuant to the definition in reg.1.05A. As a corollary she meets reg.1.12(1)(b) as she has established that as a result of meeting reg.1.05A she is ‘a member of the family unit’ of the primary applicant.

26. As she was ‘a member of the family unit’ of the primary applicant at time of application and continues to be so at time of decision she further meets the criteria in cl.309.311 and cl.309.321 of the Regulations.

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

    DECISION

28. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.311 of Schedule 2 to the Regulations

    ·cl.309.321 of Schedule 2 to the Regulations

    ·r.1.05A

    Peter Emmerton
    Member