Ahluwalia (Migration) - [2024] AATA 2869

Ahluwalia (Migration) [2024] AATA 2869 (30 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Anne Ahluwalia
REPRESENTATIVE:  Ms Courtney Jay Ludewigs
CASE NUMBER:  2113612
HOME AFFAIRS REFERENCE(S):          CLF2017/17548

MEMBER:Peter Emmerton
DATE:30 July 2024
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Contributory Aged Parent (Residence) visa.

Statement made on 30 July 2024 at 11:48am
CATCHWORDS
MIGRATION – Contributory Aged Parent (Residence) (Class DG) visa – Subclass 864 (Contributory Aged Parent) – definition of an ‘aged parent’ – time of application – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 864.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 September 2021 to refuse to grant the visa applicant a Contributory Aged Parent (Residence) (Class DG) Subclass 864 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 22 February 2017. The delegate refused to grant the visa on the basis that at the time of application was aged 64 years 2 months 15 days and as such does not meet the definition of an "Aged Parent". Given the applicant is not an aged parent, or the holder of a substituted Subclass 600 visa, the delegate found the applicant, does not meet Clause 864.212 and does not meet the requirements for the grant of a Contributory Aged Parent (Residence)Visa.
The applicant appeared before the Tribunal on 30 July 2024 to give evidence and present arguments.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the definition of an ‘Aged Parent’ and is therefore able to meet the requirements of Clause 864.212 in Schedule 2 of the Regulations.
The Tribunal has read and carefully considered all the evidence before the delegate and the Department.
The Tribunal has read and carefully considered all the evidence before it prior to decision as detailed below.
·     Applicant’s Written Submissions 22/07/2024
·     Passport – ANNE AHLUWALIA 12/07/2017
·     Death Certificate – JATINDER SINGH 2020
·     Birth Certificate – NIKITA AHLUWALIA 2015
·     Indian Passport – NIKITA AHLUWALIA 05/11/2012
·     Australian Passport – NIKITA AHLUWALIA 31/05/2022
·     Australian Citizenship – NIKITA AHLUWALIA 2018
·     Marriage Certificate 2018
·     GP Mental Health Care Plan – NIKITA AHLUWALIA 09/01/2022
·     Clinpath Pathology Report – NIKITA AHLUWALIA 01/06/2022
·     ATO Tax Return Summary 2023/2024 – NIKITA & JAMES DE GREGORIO 01/07/2024
·     Evidence of Address – ANNE AHLUWALIA 19/03/2023
·     Statutory Declaration – ANNE AHLUWALIA 30/05/2022
·     Statutory Declaration – NIKITA DE GREGORIO 09/06/2022
·     Statutory Declaration – ANNETTE DE GREGORIO 25/05/2022
·     Statutory Declaration – CAROLINE BEER 03/06/2022
·     Statutory Declaration –…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ahluwalia (Migration)

Details

AGLC: Ahluwalia (Migration) [2024] AATA 2869
Case: [2024] AATA 2869
Decision Date: 30 July 2024

CaseChat Overview and Summary

This matter concerned an application for a Contributory Aged Parent (Residence) (Class DG) visa, Subclass 864, by Anne Ahluwalia. The dispute centred on whether the applicant met the definition of an ‘aged parent’ as required by Clause 864.212 of Schedule 2 to the Migration Regulations. The decision under review was affirmed by the Tribunal.

The primary legal issue before the Tribunal was to determine if the applicant satisfied the definition of an ‘aged parent’ at the time of her application, thereby meeting the requirements for the Subclass 864 visa. This involved a careful consideration of all the evidence presented by the applicant and the Department.

The Tribunal considered extensive documentary evidence, including the applicant's passport, birth and death certificates of family members, citizenship and marriage certificates, various statutory declarations, medical reports, and correspondence with the Department. After reviewing this evidence, the Tribunal concluded that the applicant did not meet the criteria for the Subclass 864 visa because the requirements of Clause 864.212 were not satisfied. Consequently, the Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the definition of an ‘Aged Parent’ and is therefore able to meet the requirements of Clause 864.212 in Schedule 2 of the Regulations. The Tribunal has read and carefully considered all the evidence before the delegate and the Department. The Tribunal has read and carefully considered all the evidence before it prior to decision as detailed below.· Applicant’s Written Submissions 22/07/2024· Passport – ANNE AHLUWALIA 12/07/2017· Death Certificate – JATINDER SINGH 2020· Birth Certificate – NIKITA AHLUWALIA 2015· Indian Passport – NIKITA AHLUWALIA 05/11/2012· Australian Passport – NIKITA AHLUWALIA 31/05/2022· Australian Citizenship – NIKITA AHLUWALIA 2018· Marriage Certificate 2018· GP Mental Health Care Plan – NIKITA AHLUWALIA 09/01/2022· Clinpath Pathology Report – NIKITA AHLUWALIA 01/06/2022· ATO Tax Return Summary 2023/2024 – NIKITA & JAMES DE GREGORIO 01/07/2024· Evidence of Address – ANNE AHLUWALIA 19/03/2023· Statutory Declaration – ANNE AHLUWALIA 30/05/2022· Statutory Declaration – NIKITA DE GREGORIO 09/06/2022· Statutory Declaration – ANNETTE DE GREGORIO 25/05/2022· Statutory Declaration – CAROLINE BEER 03/06/2022· Statutory Declaration – HELEN MAHONY 08/06/2022· 18 Statutory Declaration – ISAAC DE GREGORIO 10/06/2022· Statutory Declaration – JADE DE GREGORIO 08/06/2022· Statutory Declaration – JAMES BEER 09/06/2022· Statutory Declaration – JAMES DE GREGORIO 27/05/2022· Statutory Declaration – MATTHEW DE GREGORIO 26/05/2022· Statutory Declaration – RANI UTARID 05/06/2022· Statutory Declaration – STANISLAUS UTARID 05/06/2022· Statutory Declaration – TIMOTHY KLOEDEN 09/06/2022· Statutory Declaration – WENDY JOHNSON 30/05/2022· Lisa White Psychological Report - ANNE AHLUWALIA 2023· Patient Drug Sheet - ANNE AHLUWALIA 19/03/2023· GP Letter - ANNE AHLUWALIA 10/04/2023· Mental Health Care Plan - NIKITA DE GREGORIO 09/01/2022· Child and Family Health Services (CAFHS) Text Messages (combined) - NIKITA DE GREGORIO-Various 13/01/2023 –14/04/2023· Patient Drug Sheet - NIKITA DE GREGORIO 19/03/2023· Patient Health Summary – NIKITA DE GREGORIO 19/07/2024· PsychMed Psychological Report - NIKITA DE GREGORIO 29/05/2023· Letter from Dr Anne Sved Williams (Consultant Psychiatrist) 15/11/2023· IMMI Refusal Notification with Decision Record 24/09/2022· Amended Form 956 and related correspondence 12/08/2019· Acknowledgement of Amended Application 27/11/2018· Acknowledgment of Primary Applicant Withdrawal 27/11/2018· Original Form 956 and related correspondence 16/06/2018· Correspondence with DHA regarding change of primary applicant with attachments: 20/03/2018· Form 47PA – Application for a parent to migrate to Australia 24/02/2018· NIKITA AHLUWALIA Letter to Department 09/03/2018· Statutory Declaration – ANNE AHLUWALIA 01/03/2018· Bridging Visa B Grant Notice – A. AHLUWALIA 11/08/2017· Bridging Visa B Grant Notice – J. AHLUWALIA 11/08/2017· Form 929 – Passport Change 25/07/2017· Bridging Visa A Grant Notice – A. AHLUWALIA 23/02/2017· Bridging Visa A Grant Notice – J. AHLUWALIA 23/02/2017· Visa Application Summary 22/02/2017· Form 40 – Sponsorship for Migration to Australia 15/02/2017

Decision

Reasons for decision

For the reasons above, the Tribunal finds that the applicant does not meet the criteria for a Subclass 864 visa as the requirements of 864.212 are not able to be met. DECISIONThe Tribunal affirms the decision not to grant the applicant a Contributory Aged Parent (Residence) visa.Peter EmmertonMember

Ratio Decidendi

Legal Principle Established

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