Begam (Migration) - [2023] AATA 2751

Begam (Migration) [2023] AATA 2751 (17 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Daly BEGAM
Miss Sanjida BAISAKHI
REPRESENTATIVE:  Mr Feng Chen (MARN: 1577771)
CASE NUMBER:  2014453
HOME AFFAIRS REFERENCE(S):          CLF2018/193102
MEMBER:Joseph Francis
DATE:17 August 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 838 (Aged Dependent Relative) visa:
·cl 838.212 of Schedule 2 to the Regulations

Statement made on 17 August 2023 at 3:17pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – aged dependent relative of an Australian relative – substantial period of dependency – money transfers – financial support in Bangladesh and Australia – age qualification – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 838.111, 838.212, 838.221; rr 1.03, 1.05
Social Security Act 1991
CASES
Huang v MIMIA [2007] FMCA 720
Huynh v MIMIA (2006) 152 FCR 576
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 9 September 2020 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visa on 28 August 2018. 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, the applicants are 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 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl 838.212.
The delegate refused to grant the visas on the basis that cl 838.212 because the requirement of Regulation 1.03(b) was not demonstrated to be met by the visa applicant. This specific regulation requires the applicant to be a dependent for a reasonable period of time. The term ‘dependent’ is defined in regulation 1.05A.
The review applicant appeared before the Tribunal on 31 January 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa application was made on the basis that the applicant is the aged dependent relative of her sponsor, Mr Mohammad Miah, who the applicant claims is their relative. Relative is also defined…

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 Begam (Migration)

Details

AGLC: Begam (Migration) [2023] AATA 2751
Case: [2023] AATA 2751
Decision Date: 17 August 2023

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 838 (Aged Dependent Relative) visa. The applicant sought this visa on the basis that she was the aged dependent relative of her son, Mr Mohammad Miah, who is an Australian permanent resident. The decision under review was made by the Migration Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the definition of an "aged dependent relative" as defined in regulation 1.03 of the Migration Regulations 1994. This required the Tribunal to determine if the applicant was a "relative" of an Australian relative, if she had no spouse or de facto partner, if she had been dependent on the Australian relative for a substantial period and remained so dependent, and if she was of an age to be granted an aged pension.

The Tribunal found that the applicant was a "relative" of Mr Miah, her son, and had provided a birth certificate as evidence. It was also satisfied that the applicant met the criterion of not having a spouse or de facto partner, having provided a death certificate for her deceased husband. The Tribunal concluded that the matter should be remitted for reconsideration by the Minister, with a direction that the applicant met the criterion under cl 838.212 of Schedule 2 to the Regulations, which relates to being an aged dependent relative of an Australian relative.

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 matter should be remitted for reconsideration. CONSIDERATION OF CLAIMS AND EVIDENCE The visa application was made on the basis that the applicant is the aged dependent relative of her sponsor, Mr Mohammad Miah, who the applicant claims is their relative. Relative is also defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or niece or nephew (or their step equivalents). In this case Mr Miah is an Australian Permanent Resident and is the visa applicant’s son.Is the applicant an aged dependent relative of an Australian relative? To be granted a Subclass 838 visa the applicant must be a ‘aged dependent relative’ of an Australian citizen, permanent resident or eligible New Zealand citizen (the Australian relative) at the time of application, and continues to be one at the time of decision: cl 838.212, cl 838.221 and cl 838.111. ‘Aged dependent relative’ is defined in reg 1.03 of the Regulations. Broadly speaking, a person will be an ‘aged dependent relative’ of another if: they are a ‘relative’ within the meaning of reg 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 (Cth). In this case, the applicant is the ‘relative’ of an Australian relative for the purposes of cl 838.212. The applicant provided a birth certificate as evidence of her relationship with the sponsor. Does the applicant have a spouse or de facto partner? Regulation 1.03(a) requires an aged dependent relative must not have a spouse or de-facto partner. The visa applicant declared that she is widowed and provided a death certificate for her deceased spouse. The Tribunal is therefore satisfied that Regulation 1.03(a) is met.Is the applicant dependent on the Australian relative? The definition of ‘dependent’ as it applies to this application is set out in reg 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: reg 1.05A(1). For the purposes of this application, reference to a ‘substantial period’ in reg 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 reg 1.05A does not carry any implication of the notion of necessity or lack of choice reg 1.05A: Huynh v MIMIA (2006) 152 FCR 576 at [43].

Decision

Reasons for decision

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 The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 838 (Aged Dependent Relative) visa:· cl 838.212 of Schedule 2 to the Regulations.Joseph FrancisMember

Ratio Decidendi

Legal Principle Established

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