1405541 (Migration)

[2015] AATA 3437

1405541 (Migration) [2015] AATA 3437 (25 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurcharan Singh Lehal

CASE NUMBER:  1405541

DIBP REFERENCE(S):  CLF2013/110544

MEMBER:John Billings

DATE:25 September 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 838 (Aged Dependent Relative) visa:

·cl.838.212 of Schedule 2 to the Regulations

·cl.838.221 of Schedule 2 to the Regulations

Statement made on 25 September 2015 at 3:48pm

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 12 March 2014 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, Mr Lehal, applied for the visa on 20 May 2013[1]. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, Mr Lehal is seeking to satisfy the criteria for the grant of a Subclass 838 visa which requires the primary applicant to be the aged dependent relative of an Australian citizen, permanent resident or an eligible New Zealand citizen. The criteria for a Subclass 838 visa are set out in Part 838 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.838.212 and cl.838.221.

   [1] There are documents on the Department’s file that indicate that the application was lodged before that date, after visa condition 8503 was waived, but according to the primary decision 20 May 2013 is the date of application.  On 20 May Mr Lehal was granted a Bridging C visa. 

3. The delegate refused to grant the visa on the basis that cl.838.212 was not met because no evidence was submitted to the Department to show that Mr Lehal was the aged dependent relative of his son, Mr Nirmole Singh Lehal (“the sponsor”).  Mr Lehal applied for review on 21 March 2014. 

4. Mr Lehal appeared before the Tribunal on 24 September 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and his wife, Ms Anita Lehal, and the sponsor’s daughter, Sudeep Lehal, and son, Sagandeep Singh. 

5. Mr Lehal was represented in relation to the review by his registered migration agent. The representative attended the hearing.

6. Mr Lehal is a national of India.  He is aged 85 years.  He was widowed in 1989.  He first arrived in Australia on 23 March 2010 holding a Class TR Subclass 676 Tourist visa.  He has departed and re-entered Australia a number of times since then. 

7. The sponsor is aged 54 years.  He works as a security officer.  He and his wife are permanent residents of Australia.  They were granted CA Subclass 143 Contributory Parent visas in 2011.  Since then they have made three trips to India but have not remained there for more than a few months at a time. 

8. Mr Lehal has two sons and three daughters.  He told the Tribunal that after his wife died he sold his home and went to live with the sponsor.  He provided what funds he had to the sponsor who has financially supported him ever since.  Mr Lehal has not had contact with his other son for over 20 years.  Two of his daughters (aged in their sixties) live in India and the other daughter (aged in her fifties) lives in Canada.  Mr Lehal said that for both cultural and financial reasons his daughters have not supported him financially.  The sponsor gave evidence about his sisters’ financial circumstances saying that the two in India do not work outside the home.  The husband of one is retired and the husband of the other has a low income.  The sister in Canada is separated from her husband and he is in India.  That sister has to rely on her children for financial support.  The sponsor’s sisters sometimes ask him for financial help.  He said that they have never provided financial support for Mr Lehal or been in a position to.  

9. As a former serviceman in the Indian air force Mr Lehal receives a pension.  Mrs Lehal, who manages the family’s finances, told the Tribunal that the pension amounts to about $A480.00 per month.  Mr Lehal described that as a negligible contribution to his total expenses. 

10. Mr Lehal currently lives in a suburb of Melbourne with the sponsor and his wife and their two adult children and the wife of the sponsor’s son.  The sponsor and his children are employed.  The sponsor and his son contributed funds for the purchase in 2009 of their home.  The property is in the name of the sponsor’s son.  There is a mortgage.  The family’s income is more or less pooled with the children providing funds to their mother, as and when they can, that go towards household expenses.  The sponsor and members of his family had difficulty in saying precisely who contributes how much but there was evidence that the sponsor contributes everything that he earns.  He has paid additional amounts required for Mr Lehal’s health care, especially in 2013 when Mr Lehal was hospitalised and underwent surgery, and his travel and accommodation expenses on the occasions since 2010 when the expiry of his visas necessitated his return to India.  (Movement records confirm that on the occasions Mr Lehal has travelled between India and Australia he has travelled on the same dates as both the sponsor and his wife, or on the same dates as just the sponsor’s wife).

11. The sponsor told the Tribunal that the main reason that evidence in support of the application was not provided to the Department at the time it was requested (in January 2014) was that he was in India.  (Movement records indicate that the sponsor was offshore from November 2013 to March 2014.  Mr Lehal was offshore from November 2013 to mid-January 2014). 

12. Relevant documents have now been provided to the Tribunal.  They include copies of the relevant pages of Mr Lehal’s passport, the sponsor’s passport and Mrs Lehal’s passport.  There is also a copy of what appears to be the sponsor’s birth certificate although, it was confirmed in evidence by the sponsor, his father’s name appears where his own name should appear.  The sponsor’s name has been added to the document.  There is a copy death certificate dated 1989 in relation to Mr Lehal’s late wife.  There are statements by Mr Lehal’s daughters indicating that they cannot support Mr Lehal financially.  There are also Australian health expense records, Indian pension records and documents relating to the sale in 2010 of the sponsor’s property in India.

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

    Consideration of claims and evidence

14. The Tribunal accepts the veracity of the evidence given by Mr Lehal and all the witnesses. 

15. The visa application was made on the basis that Mr Lehal is the aged dependent relative of the sponsor, Mr Nirmole Singh Lehal, who he claims is his relative. “Aged dependent relative” is defined in r.1.03.  “Relative” is also defined in r.1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or niece or nephew (or their step equivalents).

    Is the applicant an aged dependent relative of an Australian relative?

16. To be granted a Subclass 838 visa the applicant must be an ‘aged dependent relative’ of an Australian citizen, permanent resident or eligible New Zealand citizen (the Australian relative) at the time of application, and continue to be one at the time of decision: cl.838.212, cl.838.221 and cl.838.111. ‘Aged dependent relative’ is defined in r.1.03 of the Regulations.

17. Broadly speaking, a person will be an ‘aged dependent relative’ of another if: they are a ‘relative’ within the meaning of r.1.03; they do not have a spouse or de facto partner; they have been dependent on the Australian relative for a reasonable period and remain so dependent; and are old enough to be granted an aged pension under the Social Security Act 1991.

18. On the basis of the evidence before the Tribunal - the birth certificate and the oral evidence about that, and the copy passports, but also the oral evidence generally - the Tribunal finds that Mr Lehal is a relative of the sponsor who in this case is his son and a permanent resident of Australia, having been granted a Class CA Subclass 143 Contributory Parent visa in 2011. 

19. In this case, Mr Lehal therefore is the ‘relative’ of an Australian relative for the purposes of cl.838.212.

    Does the applicant have a spouse or de facto partner?

20. On the basis of the death certificate submitted and the oral evidence given by Mr Lehal in particular, the Tribunal is satisfied that Mr Lehal’s wife died in 1989 and he has not had a spouse or de facto partner since then. Subparagraph (a) of the definition of ‘aged dependent relative’ is therefore met at the time of application and the time of decision.

    Is the applicant dependent on the Australian relative?

21. The definition of ‘dependent’ as it applies to this application is set out in r.1.05A(1) of the Regulations. Generally speaking, an applicant will be dependent on their relative, if at the relevant time the applicant was wholly or substantially reliant on their relative for financial support to meet their basic needs for food clothing and shelter; and their reliance on their relative was greater than their reliance on any other person or source of support. An applicant may also meet the requirements where their reliance on their relative is due to the total or partial loss of their bodily or mental functions: r.1.05A(1).

22. The reference in r.1.05A(1) to “the other person” on whom the applicant is and has been reliant is a reference to a “person” (singular): Fernandez v MIBP [2015] FCCA 1698. In this case that means the sponsor. And, for the purposes of this application, reference to a ‘substantial period’ in r.1.05A means a period not more substantial than a ‘reasonable period’: Huang v MIMIA [2007] FMCA 720 at [47]. Further, the proper construction of ‘dependent’ in r.1.05A does not carry any implication of the notion of necessity or lack of choice r.1.05A: Huynh v MIMIA [2006] FCAFC 122 at [43]. That is to say, it is not the case that an applicant must have a lack of choice before he or she can be said to be wholly or substantially dependent or reliant on the other person.

23. There are numerous cases where, in a variety of circumstances and legal contexts, courts have considered what is meant by “dependent”.  The most important principles that emerge are these.  The question is whether, at the relevant time, the applicant is predominately or primarily, essentially or in the main dependent on the sponsor.  That is a question of fact.  A broad practical judgment must be made about that.  All relevant circumstances should be considered, including past events and future probabilities.  An applicant’s need to rely on the other person is the issue rather than that the other person is providing financial support.  It would be erroneous to limit the issue to the mere comparison of the monetary value of the respective contributions made by the persons providing support.  See generally MIMA v Graovac [1999] FCA 1690; Huang, cited above; Al Naqi v MIAC [2007] FMCA 874; and Phin v MIAC [2013] FMCA 60.

24. The Tribunal observes that Mr Lehal’s Indian pension amounts to less than a third of an Australian aged person.[2]   On the basis of the oral and documentary evidence before it the Tribunal makes these findings.  Mr Lehal has no source of income other than his modest Indian pension.  The sponsor has otherwise been meeting his needs.  Mr Lehal has been predominantly dependent on the sponsor for over 20 years and continues to be.  The evidence does not enable the Tribunal to compare the monetary value of current contributions respectively made by the sponsor and his children but that would not be determinative.  Although Mr Lehal lives in a house that is legally owned by the sponsor’s son, and although the sponsor’s son and daughter contribute to the household budget in a way that benefits Mr Lehal, the house was acquired with funds partly provided by the sponsor, and the sponsor contributes everything he earns to the household budget.  As the representative submitted at the hearing, the contribution made by the sponsor’s daughter especially may not continue indefinitely if her circumstances change and she lives elsewhere.  Mr Lehal will need to rely on the sponsor indefinitely.  In the Tribunal’s view the situation is really that, for the time being, the sponsor’s children are making a contribution to the household finances, but Mr Lehal continues to be wholly or substantially dependent on the sponsor, and his reliance on the sponsor is greater than his reliance on any other person or source of support.

    [2] >

    In summary, the Tribunal concludes that Mr Lehal is and for a reasonable time has been wholly or substantially reliant on the sponsor for financial support to meet his basic needs for food clothing and shelter; and his reliance on the sponsor has been and is greater than his reliance on any other person or source of support. 

25. For these reasons subparagraph (b) of the definition of ‘aged dependent relative’ is met the time of application and the time of decision.

    Is the applicant old enough to be granted an age pension?

26. To meet the definition of ‘aged dependent relative’ the applicant must be old enough to be granted an aged pension under the Social Security Act 1991. Different age qualifications apply for men and women and depend upon the date of the applicant’s birth.

27. The visa application indicates and Mr Lehal’s passport confirms that he was born in 1930.  He stated in evidence that he is aged 85.  On the basis of that evidence the Tribunal is satisfied that he is old enough to be granted an aged pension under the Social Security Act 1991. 

28. Subparagraph (c) of the definition of ‘aged dependent relative’ is therefore met at the time of application and the time of decision.

29. For the reasons set out above, the Tribunal is satisfied that the applicant is the aged dependent relative of an Australian relative at the time of application and the time of decision for the purposes of cl.838.212 and cl.838.221.

30. 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 838 visa.

    DECISION

31. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 838 (Aged Dependent Relative) visa:

    · cl.838.212 of Schedule 2 to the Regulations

    · cl.838.221 of Schedule 2 to the Regulations

    John Billings
    Senior Member