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

1. 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).

2. 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.

3. The applicant appeared before the Tribunal on 30 July 2024 to give evidence and present arguments.

4. The applicant was represented in relation to the review.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. The Tribunal has read and carefully considered all the evidence before the delegate and the Department.

8. 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

9. Relevant to this case, Regulation 1.03 specifies that an ‘aged parent’ is defined as a parent old enough to be granted and Age Pension under the Social security Act 1991.

10. At the time of application (22 February 2017), a DG 864 was lodged by the primary applicant AHLUWALIA, JATINDER SINGH (May 1949, Male) and the secondary applicant, his wife AHLUWALIA, ANNE (December 1952, Female). Both individuals held a Visa Subclass FA 600. These were not substituted Subclass 600 visas.

11. As the primary applicant was, at the time of application aged 67 years he met the definition of an "Aged Parent". His wife, the secondary applicant only had to meet the secondary criteria and therefore her age was not a consideration.

12. On 20 March 2018, an email was received by the Department advising the primary applicant was withdrawing his application and his wife was continuing with her application. A signed withdrawal was also provided. This has been sighted by the Tribubnal.

13. On 26 March 2018, an email was sent to the applicant’s agent Mr Himanshu Gupta explaining the following.

    “If the current DG864 application lodged 22/02/2017 is processed – withdrawing Mr Jatinder
    Singh Ahluwalia and changing Mrs Anne Ahluwalia to the primary applicant it would not be
    successful as Mrs Ahluwalia does not meet 864.212(a).

    If the current DG864 application lodged 22/02/2017 is completely withdrawn and Mrs Anne
    Ahluwalia lodges a new application in her own right she would not meet 864.212(a) until
    07/06/2018.

    Please advise how Mrs Anne Ahluwalia wishes to proceed.”

14. There was no further communication from Mr Gupta to the Department.

15. On 27 November 2018 the withdrawal of the primary applicant was undertaken by the Department.

16. It is clear to the Tribunal the applicant and her representative had been informed of the outcome associated with the primary applicant’s decision to withdraw and return to India, as quoted in paragraph 13 of this decision. This presented the applicant with a choice as to how to proceed. The Tribunal raised this with the applicant during the hearing.

17. On 14 August 2018 the Department received an email with a new agent appointment, Mr Patrick QUAN of QS lawyers. It is evident that that applicant chose to continue with the decision under review. The Tribunal accepts there are understandable reasons as to why such a decision was made as outlined by the representatives most current submission dated 22 July 2024. These included financial, delays in obtaining a visa, the challenges of returning to India in order to make a fresh application, impact on her health and impact on her daughter and her family. When questioned as to why she chose to continue with the application and not withdraw and then reapply for a new visa the applicant appeared to be uncertain as to how to respond. These matters are complex and the Tribunal appreciates applicants rely heavily upon the advice given by their representatives. It is further noted the current representatives were not the same ones involved in the original application.

18. The Tribunal acknowledges the written argument made by the representative that the original application date should be modified to the point in time when the primary applicant withdrew thus making the applicant who is the topic of this review the primary applicant. The Tribunal does not agree. The time of application is clear, Mrs Anne Ahluwalia had the opportunity to withdraw and make a fresh application which she chose not to do.

19. The Tribunal acknowledges the argument put forward by the representative that,  

    … ‘In the Regulations, subheading 864.21 reads “Criteria to be satisfied at time of application”. It is established by the High Court authority of Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 (‘Berenguel’) at [15] and [26] that this subheading is taken to form part of the Regulations and can inform the construction of the text …’

20. The Tribunal also notes and rejects the argument put forward by the representative,

    ‘Further, in Prabhakaran v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 357, Judge Ladhams, amongst other things, adopted the applicant’s submissions that the decision-maker ought to have considered later developments (in that case relevant to meeting the distinguished talent visa requirements) notwithstanding the “time of application” heading in cl 858.212 of the Regulations (at [35]).’ …

21. It is clear the time of application was 22 February 2017. It is self-evident the applicant Mrs Anne Ahluwalia chose not to withdraw the application and submit a new application even though the outcome had been clearly explained in writing by the Department.

22. At the time of application which is 22 February 2017 Mrs Anne Ahluwalia was approximately 10 months short of reaching the pension age. Therefore, she does not meet the definition of an ‘Aged Parent’. As the applicant is not an aged parent, or the holder of a substituted Subclass 600 visa, the Tribunal must find the applicant does not meet Clause 864.212 and does not meet the requirements for the grant of a Contributory Aged Parent (Residence)Visa.

23. The representative submitted a substantial argument in favour of the Tribunal seeking Ministerial Intervention on their client’s behalf. The Tribunal accepts the applicant has had substantial misfortune in her family’s history and her current circumstances are challenging. It also accepts that her leaving what is effectively her only family and returning to India alone, without family support and stopping her contributing to the wellbeing of her family as she currently does by supporting the daily in-home functions is unlikely to contribute positively for any of the individuals concerned.

24. Whilst the Minister may choose to consider and find favourably for the applicant, the Tribunal has formed a different view to the action requested of it. It is of the view the legislation and regulation surrounding this matter are functioning as intended. It is possible to imagine how if this temporal shifting of the definition of time of application was adopted, in some circumstances the intention of the Act could be abused. It is possible that the Minister may in this individual circumstance choose to intervene on behalf of the applicant. That is to remain the prerogative of the Minister. The Tribunal has encouraged the applicant to apply for such intervention.

25. 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.

    DECISION

    The Tribunal affirms the decision not to grant the applicant a Contributory Aged Parent (Residence) visa.

    Peter Emmerton
    Member