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

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).
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.
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
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).
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.
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…

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 Dubey (Migration)

Details

AGLC: Dubey (Migration) [2025] ARTA 2132
Case: [2025] ARTA 2132
Decision Date: 2 July 2025

CaseChat Overview and Summary

Dubey (Migration) involved the consideration of a visa application under the Subclass 114 (Aged Dependent Relative) category by the visa applicant, who claimed to be wholly or substantially reliant on her Australian relative for financial support. The applicant sought to challenge the delegate’s decision that she did not meet the dependency requirement for the visa. The matter was heard and determined by the Migration Review Tribunal, which had the responsibility of reviewing the primary decision made by the delegate.

The central legal issues before the Tribunal were whether the visa applicant was indeed an aged dependent relative of an Australian relative, and whether she was wholly or substantially reliant on the Australian relative for financial support, as required by the regulations. Specifically, the Tribunal had to assess if the applicant met the definition of 'aged dependent relative' as outlined in regulation 1.03, including the dependency requirement. This required an analysis of the evidence provided by the applicant and the sponsor regarding the financial dependency of the applicant on the sponsor.

The Tribunal reviewed the evidence and found that while the applicant received a limited pension from India, it was insufficient to meet her needs. The sponsor provided a statement and other documents indicating that the applicant had been wholly dependent on him for her basic needs, with no other source of income. Despite the delegate's concern over the lack of direct evidence of money transfers from the sponsor, the Tribunal concluded that the applicant's overall reliance on the sponsor for financial support was evident. The Tribunal accepted that the applicant was substantially reliant on the sponsor for her financial needs, thereby meeting the dependency requirement.

Based on the Tribunal's findings, the decision of the delegate was set aside and the matter was remitted to the delegate for reconsideration in light of the Tribunal's determinations. The Tribunal's decision highlighted the importance of the applicant’s substantial reliance on the sponsor, despite the evidentiary concerns raised by the delegate.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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. 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. 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? 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? 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.

Ratio Decidendi

Legal Principle Established

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