Imam (Migration) - [2025] ARTA 341

IMAM (MIGRATION) [2025] ARTA 341 (4 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Begum Anowara Imam
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2107045

Tribunal:Senior Member M Bourke
Place:Melbourne
Date: 4 March 2025
Decision:The Tribunal affirms the decision not to grant the applicant an Aged Dependent Relative (Residence) (Class BU) visa.

Statement made on 04 March 2025 at 3:19pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – is the mother of the Australian relative sponsor – applicant continues to be dependent upon her son – not old enough to be granted an age pension – not satisfied that the applicant met the definition of aged dependent relative at the time of application – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, cl 838.212
Social Security Act 1991

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 12 May 2021 to refuse to grant the visa applicant an Other Family (Residence) (Class BU) Subclass 838 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 11 November 2020, on the basis that she is an Aged Dependent Relative of the sponsor, her son. The applicant applied for the visa on the basis that she met the criteria for the subclass 838 (Other Family) (Residence) visa. The criteria for the grant of this visa are set out in Part 838 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The delegate refused to grant the visa on the basis that the applicant did not meet the definition of age dependent relative as defined in reg 1.03 for the purpose of meeting the criteria in subclause 838.212.
The Tribunal had regard to its objectives for providing an independent mechanism of review that is fair and just, that ensures applications to the Tribunal are resolved quickly, with little formality and expense, but allow proper consideration of the matters. The Tribunal had regard to its objectives to provide an independent mechanism of review that is accessible and responsive to the diverse needs of parties to the proceedings, and improves the transparency and quality of decision-making and promotes trust and confidence in the Tribunal.
The Tribunal also had regard to the fact the applicant resided in New South Wales, and the review was constituted to a member in the Melbourne registry.
For all the above reasons the Tribunal determined it was appropriate that the hearing in this review should be conducted by way of video connection.
The applicant appeared before the Tribunal by video on 3 March 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, who is the applicant’s son, and who attended the hearing with the applicant on the same device. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The interpreter attended the hearing by video.
The Tribunal noted that the applicant at times was distressed during the hearing. The Tribunal does not consider that this impacted the reliability of the evidence before it. The Tribunal is satisfied that the applicant and the sponsor understood all the issues being discussed in the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the time of application requirements in cl.838.212. This subclause requires that at the time of application the visa applicant is an aged dependent relative of an Australian relative.
The Tribunal is satisfied based on the oral and written evidence before it, which includes the sponsor’s Australian passport, and the Department’s own records, that the sponsor is an Australian citizen.
The Tribunal is satisfied based on the documents provided, including the sponsor’s registered Bangladesh translated marriage certificate which records the visa applicant as his mother, that the sponsor is the son of the applicant.
Accordingly the Tribunal is satisfied that the visa applicant is a relative of an Australian relative, namely she is the mother of the Australian relative sponsor.
Reg 1.03 defines an aged dependent relative in relation to a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means a relative who (a) does not have a spouse or de facto partner; and (b) has been dependent on that person for a reasonable period, and remained so dependent; and (c) is old enough to be granted an age pension under the Social Security Act 1991.
The Tribunal is satisfied based on the death certificate and a statement by the sponsor that the applicant’s husband died on 18 October 2016. The Tribunal is satisfied that the applicant is a widow and does not have a spouse or de facto partner. The Tribunal is satisfied that the applicant met the first component, (a) of the definition of the time of application, and continues to do so.
The Tribunal has considered the written and oral evidence before it and is satisfied that after the death of her husband, the applicant became dependent upon her three children, her two daughters who resided in Bangladesh and her son, the sponsor, who is an Australian citizen and resides in Australia. The Tribunal is satisfied based on the evidence before it that initially, after the death of her husband, the applicant resided with her oldest daughter in Bangladesh, but in 2017 this daughter was diagnosed with cancer and could no longer care for her mother. The Tribunal is satisfied that the sponsor has been the primary financial support for the applicant, during her husband’s illness, and after his death.
The Tribunal is satisfied based on the written and oral evidence before it, which is confirmed by Department records, that the applicant arrived in Australia on a visitor visa on 9 April 2019, and has remained residing with her son since that time. The Tribunal is satisfied that the applicant has twice returned to Bangladesh in 2024 in relation to ill-health and death of her daughters and to spend time with her grandchildren. The Tribunal is satisfied that since the applicant has resided with her son in Australia from 9 April 2019, she has relied on her son for financial, emotional and practical support. The Tribunal is satisfied that the visa applicant has been dependent upon her son, the sponsor for a reasonable period, approximately 18 months at the time of application. The Tribunal is satisfied that the applicant continues to be dependent upon her son. The Tribunal is satisfied that the applicant met the second component of the definition of age dependent relative (b), at the time of application and continues to do so.
The Tribunal is satisfied based on the oral evidence of the applicant and her identification documents that she was born on 11 October 1955. The Tribunal is satisfied that at the time of application, namely 11 November 2020, the applicant was aged 65 years. The Tribunal is satisfied that eligibility to be granted an age pension under the Social Security Act 1991 was increased over a staggered period commencing 1 July 2017, and increased from that date to 65 years and six months. The Tribunal is satisfied that for persons born in the period 1 July 1955 to 31 December 1956 the age minimum to be eligible for the age pension was increased to a minimum of 66 years and six months. The Tribunal is satisfied based on the discussion in the hearing, and the evidence provided by the applicant and the sponsor that the applicant was not eligible to be granted an age pension at the time of application on 11 November 2020 as she had just turned 65 years.
For the above reasons the Tribunal is satisfied that the time of application, namely 11 November 2020, the applicant did not meet the third component of the definition of aged dependent relative as defined in reg 1.03, as the applicant did not meet the requirements in (c) that is, she was not old enough to be granted an age pension under the Social Security Act 1991.
In reaching this finding, the Tribunal notes that at the time of this decision the applicant would meet the definition of aged dependent relative in reg 1.03.
The Tribunal is also cognisant that a period of four years and three months have passed since the applicant lodged the application for the aged dependent relative visa, and, three years and nine months have passed since the applicant applied for review of the Department’s decision.
For the reasons set out above, the Tribunal is not satisfied that the applicant met the definition of aged dependent relative at the time of application, and therefore does not meet the requirements of cl.838.212, that the applicant is an aged dependent relative of an Australian relative. The Tribunal is not satisfied that the applicant meets the time of application requirements of cl.838.212.
For this reason, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant an Aged Dependent Relative (Residents) (Class BU) visa.
Ministerial Intervention
The Tribunal recommends this matter to the Minister for the exercise of discretion pursuant to s.351 of the Act.
The Tribunal commends to the Minister that there are compassionate circumstances regarding the age and health of the applicant that if not recognised would result in serious, ongoing and irreversible harm to the applicant. The Tribunal notes the applicant is aged 69 years of age, and her husband died in 2016 and her two daughters have both died in Bangladesh since she lodged the application for the visa in November 2020.
The applicant currently lives with and is supported by her remaining child, her son who is an Australian citizen. The applicant’s son who has sponsored her for the visa is employed as a disabilities service manager and has been in this role for three years. The applicant’s son is married to an Australian citizen woman, and they have two Australian-born and Australian citizen sons aged 14 and 11 years.
The Tribunal recommends that there would be strong compassionate circumstances that would result in serious ongoing and irreversible harm to an Australian citizen and his Australian citizen family unit if the visa is not granted. The Tribunal understands that the applicant’s son intends to provide and care for, and support his mother (the applicant). In the circumstances if the visa is not granted, the applicant’s son will either have to leave his family to return to Bangladesh to look after his mother, or alternatively ask his sons to leave their friends, school and other activities in Australia and his wife to leave her social and other commitments and move with all his family to Bangladesh to support and care for his mother. The Tribunal also notes that if the applicant’s son is required to leave Australia there is a consequent hardship or disadvantage to the persons who benefit from his current disabilities services manager role.
Date(s) of hearing: 3 March 2025
Representative for the Applicant: N/A