Dubey (Migration)

[2025] ARTA 2132

DUBEY (MIGRATION) [2025] ARTA 2132 (2 JULY 2025)

DECISION AND  

REASONS FOR DECISION

Applicant:Mr Vijay Dubey

Visa Applicant:  Mrs Kusum Dubey

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:  2419751

Tribunal:K Raif

Place:Sydney

Date:2 July 2025

Decision:The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 114 (Aged Dependent Relative) visa:

·cl 114.211 of Schedule 2 to the Regulations; and

·cl. 114.221 of Schedule 2 to the Regulations.

Statement made on 02 July 2025 at 7:53am

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 114 (Aged Dependent Relative) – aged dependent relative of an Australian relative – wholly or substantially reliant for financial support – limited pension from India – substantial period – evidence of money transfers from other sources – greater reliance than on any other person – age requirement – decision under review remitted      

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2 cls 114.211, 114.221; rr 1.03, 1.05
Social Security Act 1991 (Cth)

CASES

Huang v MIMIA [2007] FMCA 720

Huynh v MIMIA (2006) 152 FCR 576

STATEMENT OF 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 17 April 2024 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant is a national of India, born in October 1946. She applied for the visa on 2 November 2010. The delegate refused to grant the visa on the basis that cl 114.221 was not met because the delegate was not satisfied the visa applicant was an aged dependent relative of the sponsor. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 12 June 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s spouse and the visa applicant. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the application was made, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer).

5. The criteria for a Subclass 114 visa are set out in Part 114 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl 114.221.

6. To be granted a Subclass 114 visa the visa 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 continue to be one at the time of decision: cl 114.211 and cl 114.221. ‘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).

   Primary decision

7. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant  made the application in November 2010 and in December 2011 she was assessed as meeting the core criteria and was placed in the queue. In 2023 an assessment of the visa applicant’s dependency was undertaken and the delegate wrote to the visa applicant seeking additional information. In response, the visa applicant provided a statement and a number of documents from the sponsor. The sponsor stated that his mother has been living in Australia with him and has no other source of income as her pension from India is insufficient. The sponsor stated that his mother has been wholly dependent on him for her basic needs, she does not own a house and has no family in India.

8. In her statement, the visa applicant stated that all her expenses were paid by the sponsor and that she did not receive financial support from any other family members. The visa applicant stated that she received a pension from India but it was not sufficient. The visa applicant stated that she had no other income.

9. The delegate noted that the visa applicant provided evidence of regular transfers from the sponsor but no evidence of receipt of these funds. The delegate noted that the visa applicant’s bank records show pension payments and transfers from other sources but no evidence of funds from the sponsor. The delegate determined that there was insufficient evidence that the visa applicant relied on the sponsor for financial support and found that the visa applicant did not meet r. 1.05 definition of dependence at the time of decision for the purpose of cl. 114.221.

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

   Does the visa applicant have a spouse or de facto partner?

10. The visa applicant claims to be a widow and this claim was accepted by the delegate. The Tribunal is satisfied she does not have a spouse or de facto partner. Subparagraph (a) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.

    Is the visa applicant dependent on the Australian relative?

11. The visa applicant is the mother of the sponsor and the Tribunal is satisfied she is a ‘relative’ of an Australian relative for the purposes of cl 114.211.

12. 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).

13. 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].

14. The delegate indicates in the primary decision record that the visa applicant was assessed as meeting the core requirements before her application was placed in a queue in 2011. That indicates that she was assessed as meeting the dependence requirements at the time of application. There is nothing before the Tribunal to indicate that the delegate’s finding was inaccurate or incorrect. The Tribunal need not revisit the finding in relation to time of application and finds, for the purpose of this review, that the visa applicant was an aged dependent relative at the time of application and that she met cl. 114.211.

15. With respect to time of decision, the applicant provided to the Tribunal a number of documents between 4 and 10 June 2025 including medical records and health insurance claims relating to the visa applicant, bank statements, receipts, evidence of transfers, statements and other materials.  In his statement received on 5 June 2025 the sponsor concedes that insufficient documents were provided with the application to evidence his mother’s dependence. The sponsor states that during the relevant period between March 2020 and March 2023, his mother had spent a significant period of time in Australia (March to December 2020 and August 2021 to August 2022) and even when residing overseas, she continued to be reliant on him for financial support. The sponsor states that his mother has no other source of income in Australia and her pension from India is ‘barely enough to survive on’. She does not own a house and has no other family in India who can support her. The sponsor outlines the nature of support he has provided to his mother. The visa applicant and the sponsor’s partner also provided statements referring to the financial support from the sponsor.

16. In oral evidence the review applicant confirmed that in the past few years his mother has spent the majority of time in Australia and has been living with him and his family. She had to depart Australia due to visa restrictions. When she travelled overseas, the visa applicant stayed in the Netherland where his sister lives, and in India. In the past three years, the review applicant states that his mother stayed in Australia between August 2022 and August 2023 and from June 2024 to now. That evidence indicates that in the past three years, the visa applicant has spent about two years in Australia.

17. The review applicant told the Tribunal that while in Australia, the visa applicant relies fully on him and his family and he pays all of her expenses, including medical expenses, food and clothing. The Tribunal accepts that evidence.

18. The review applicant states that from August 2023 to March 2024 the visa applicant stayed in India and they rented a house for her and paid through Western Union (evidence of transfers has been provided to the Tribunal). From March to June 2024 his mother lived with her daughter in the Netherland and the daughter met most of the expenses but she herself has a medical condition and limited funds.

19. The review applicant states that his mother receives a pension of about AUD600-700 a month and she keeps these funds ‘for emergencies’ or she spends the money for whatever she likes or needs but that amount is not much, given the cost of living and the visa applicant’s needs. The review applicant acknowledged that he did not have professional support and did not provide enough documentary evidence when the application was made.

20. The Tribunal has considered whether the visa applicant meets the dependence requirements at the time of this decision. The delegate found that there was insufficient evidence of the visa applicant’s financial reliance on the sponsor. However, there is additional evidence before the Tribunal, including evidence of financial transfers, bank records and various statements from the visa applicant, the sponsor and others.

21. As noted above, the Tribunal accepts that during the periods of her residence in Australia, the visa applicant has been fully dependent on the sponsor for all her needs. The Tribunal accepts that she lives with the sponsor and is fully reliant on him for food, shelter and clothing. The Tribunal is satisfied that during her residence in Australia the visa applicant has been fully reliant on the sponsor and dependent on him.

22. The Tribunal notes that in the past three years, the visa applicant has not spent a significant amount of time (about 1 year out of 3 years) overseas. The review applicant’s evidence is that during that period she spent about 9 months in India and 3 months in the Netherlands with her daughter. The review applicant’s evidence, which the Tribunal accepts, is that when the visa applicant resides in India, he rents a house for her, which he pays for, and he also pays for the majority of the visa applicant’s expenses as her pension is not sufficient. The Tribunal accepts that evidence and accepts that while the visa applicant resides overseas, she is reliant on the sponsor for her basic needs of food, shelter and clothing. While she also receives a pension, the Tribunal is satisfied that the visa applicant’s reliance on the sponsor is greater than her reliance on any other source, such as her pension.

23. The evidence before the Tribunal is that when the visa applicant lives in the Netherlands, she is primarily supported by her daughter. The Tribunal is not convinced that during that period, the visa applicant was reliant on the sponsor to meet her basic needs. However, the Tribunal finds that this period is minimal and does not affect the overall dependence.

24. The Tribunal accepts on the evidence before it that, at the time of this decision, and for a substantial period immediately prior to this time, the visa applicant is and was substantially reliant on the sponsor for financial support to meet her basic needs for food, clothing and shelter. The Tribunal is satisfied that the visa applicant’s reliance on the sponsor is, and has been greater than any reliance on any other person, or source of support, for financial support to meet the visa applicant’s basic needs for food, clothing and shelter. The Tribunal is satisfied the visa applicant meets subparagraph (b) of the definition of ‘aged dependent relative’ at the time of decision. As noted above, the Tribunal also accepts, on the basis of the determination made by the delegate, that the visa applicant met the dependency requirement at the time of application.

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

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

26. The visa applicant was born in October 1946. She was 64 when the application was made and is 78 at present. The Tribunal is satisfied the visa applicant is old enough to be granted an age pension under the Social Security Act 1991 (Cth). Subparagraph (c) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.

27. 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 114.211 and cl 114.221.

    Conclusion

28. 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 114 visa.

    DECISION

29. The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 114 (Aged Dependent Relative) visa:

    ·cl 114.211 of Schedule 2 to the Regulations; and

    ·cl. 114.221 of Schedule 2 to the Regulations.

    Date(s) of hearing  12 June 2025

    Representative for the Applicant:           n/a