Ghabrial (Migration) - [2021] AATA 2838

Ghabrial (Migration) [2021] AATA 2838 (23 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Kamila Ishak Ghabrial
CASE NUMBER:  1902675
HOME AFFAIRS REFERENCE:               CLF2017/70997
MEMBER:Rosa Gagliardi
DATE:23 June 2021
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 838 (Aged Dependent Relative) visa:
·cl 838.212 of Schedule 2 to the Regulations; and
·cl 838.221 of Schedule 2 to the Regulations.

Statement made on 23 June 2021 at 10:10am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – applicant wholly or substantially reliant on sponsor for financial support – incapacitated for work due to total or partial loss of bodily or mental functions – aged dependent relative of sister – reliant on the sponsor since 2011 – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5CA, 65
Migration Regulations 1994, rr 1.03, 1.05; Schedule 2, cl 838.212, 838.221
CASES
Cole v MIBP [2018] FCAFC 66
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 30 January 2019 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 6 October 2017. 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 applicant is 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 visa on the basis that cl 838.212 was not met at the time of application, as it was considered the applicant did not meet r.1.03(b). It appeared the applicant had not been substantially reliant for a substantial period immediately before the time of lodgement, or wholly or substantially reliant on her sponsor (her sister) for financial support for her basic needs of food, clothing and shelter, and therefore did not meet r.1.05A(1). The applicant also did not establish that her reliance on the sponsor is greater than reliance on any other person (r.1.05A(1)(a)(ii)).
The applicant in this case contends that she meets the requirements for dependency under r.1.05(1)(b) because the applicant is wholly or substantially reliant on the sponsor for financial support because she is incapacitated for work due to the total…

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.

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Details

AGLC: Ghabrial (Migration) [2021] AATA 2838
Case: [2021] AATA 2838
Decision Date: 23 June 2021

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, a United States national of Egyptian background, sought the visa on the basis that she was the aged dependent relative of her sister, Ms Ester Shehata, an Australian citizen. The applicant had been residing in Australia since 2011, having left her previous home in Boston after her husband's death in 2008, and had not worked outside the home since 2006. The decision under review was made by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for being 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 citizen, if she had no spouse or de facto partner, if she had been and remained dependent on her Australian relative for a reasonable period, and if she was of an age to be granted an aged pension. The Tribunal was also required to consider the specific clauses of Schedule 2 to the Regulations, namely cl 838.212 and cl 838.221, which relate to being an aged dependent relative and the requirement of financial dependence.

The Tribunal found that the applicant was a "relative" of an Australian relative for the purposes of the visa application, as Ms Shehata was her biological sister and an Australian citizen. The Tribunal also noted that the applicant had no children or relatives in the United States. While the applicant had lived with her mother until 2015 and then moved in with her sister rent-free, the Tribunal acknowledged that this did not preclude her from having been financially reliant on her sister prior to 2015. The Tribunal concluded that the applicant met the criteria under cl 838.212 and cl 838.221 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with the direction that the applicant met the specified criteria for a Subclass 838 (Aged Dependent Relative) visa. The Minister was to consider the remaining criteria for 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 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 sister, Ms Ester Shehata, who the applicant claims is her 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 Ms Ester Shehata is an Australian citizen and is the applicant’s biological sister. This matter is not in dispute.Background The applicant is a United States national and is of Egyptian background. She was previously living in Boston with her husband prior to him passing away in 2008. She has not lived there since 2011, residing in Australia since that time. The applicant’s psychological documentation shows that she was involved in an abusive spousal relationship and was “systematically emotionally abused and controlled over many years by her husband. She was not permitted to leave this marriage due to strict cultural expectations that required obedience in terms of her gender role”. This meant that despite her troubled marriage when her husband became ill with cancer, she left her work permanently in 2006 and nursed him until he passed away in 2008. The applicant has therefore not worked outside the home for almost 14 years. She first came to Australia on a Visitor visa and lived with her mother until her mother passed away in 2015 and then moved in with her sister, rent-free, the sponsor, even though this does not exclude that the applicant had been reliant on the sponsor for her financial needs prior to 2015. It is claimed that the applicant in fact had lived with the sponsor on arrival in Australia in 2011, only living with her mother between March 2013 to March 2015. The application was made in October 2017. The applicant has no children or relatives in the United States.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 continue 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 Tribunal finds that the applicant is the ‘relative’ of an Australian relative for the purposes of cl. 838.212. Does the applicant have a spouse or de facto partner?

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 application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 838 (Aged Dependent Relative) visa:· cl 838.212 of Schedule 2 to the Regulations; and· cl 838.221 of Schedule 2 to the Regulations.Rosa GagliardiMember

Ratio Decidendi

Legal Principle Established

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