Kaur (Migration)

[2021] AATA 2465

Kaur (Migration) [2021] AATA 2465 (16 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Rachhpal Kaur

CASE NUMBER:  1808208

DIBP REFERENCE(S):  CLF2016/53932

MEMBER:Kira Raif

DATE:16 March 2021

PLACE OF DECISION:  Sydney

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 16 March 2021 at 10:10am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – dependent relative of an Australian relative – remaining relative – sponsor paid for travel and living expenses – regular substantial financial transfers – decision under review remitted   

LEGISLATION

Social Security Act 1991
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 838.111, 838.212, 838.221; rr 1.03, 1.15

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 March 2018 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 6 September 2016. The delegate refused to grant the visa on the basis that cl.838.212 was not met because the delegate was not satisfied the applicant was a dependent relative of an Australian relative. The applicant seeks review of the delegate’s decision.

3. The applicant authorised her grandson, the sponsor, go give evidence on her behalf. The sponsor appeared before the Tribunal on 16 March 2021 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent. 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 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 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.838.212.

5. 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 r.1.03 of the Regulations.

6. Broadly speaking, a person will be an ‘aged dependent relative’ of another if: they are a ‘relative’ within the meaning of r.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.

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

7. The applicant claims to be a grandmother of the sponsor. The sponsor is not a parent, sibling or a step-sibling of the applicant. As such, the applicant cannot meet the definition of ‘remaining relative’ in r. 1.15. She does not meet the requirements for the grant of the Remaining Relative visa. The applicant does not claim to be a carer and the application was not accompanied by the relevant Carer certificate. The Tribunal finds that  the applicant had not made a valid application for a Carer visa.

8. The application was made on the basis that the applicant is an aged dependent relative of the sponsor. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was sponsored by Mr Ranjit Singh who is the applicant’s grandson. The applicant provided evidence that the sponsor is the son of Mr Hira Singh and Parmajit Kaur and the applicant declared Mr Hira Singh as her son. The delegate requested the applicant to provide her son’s birth certificate to evidence her relationship with the sponsor but the applicant stated that she was unable to provide her son’s birth certificate. As a result, the delegate was not satisfied that the sponsor was the applicant’s grandson and that the applicant was sponsored by a relative.

9. The delegate also noted that the applicant was unable to provide evidence of her husband’s death and the delegate was not satisfied she was a widow.

10. The delegate considered the issue of the applicant’s dependence. According to the primary decision record, the applicant claimed in her application that she had been dependent on her grandson for ten years. The applicant had not presented evidence of such support, other than a declaration from the sponsor. The applicant subsequently provided her and the sponsor’s declarations and evidence of her travel paid for by the sponsor. The applicant stated that she has been supporting her grandson and daughter in law following the death of her son. Following the grandson’s migration to Australia, she visited Australia six times since 2012 and the sponsor paid for her travel and living expenses in Australia and India. The applicant stated that she has no pension in Australia or in India and there are no other family members who can support her. The sponsor also provided a declaration with the same information. The delegate noted that the applicant had spent 677 days in Australia and 418 days outside Australia in the three years before the application was made. The delegate noted that the applicant had not provided evidence as to her basic needs and that these were being met by the sponsor in Australia and in India. The delegate was not satisfied the applicant was dependent on the sponsor.

11. In November 2020 the applicant provided further evidence to the Tribunal, including evidence that the sponsor paid for her travel to Australia, evidence of money transfers, a number of statements from neighbours referring to the support the applicant receives from the sponsor and her relation to the sponsor, and medical evidence relating to the applicant. It indicates that the applicant was blind from a young age and due to her present age, has a number of other health issues.

12. The applicant claims to be a widow but she was unable to provide evidence of her husband’s death with the primary application. Mr Singh told the Tribunal that his grandfather passed away over 50 years ago and they lived in a small village, so no documentation was available. The Tribunal acknowledges that given the passage of time, documentary evidence of the partner’s death may no longer be available. The visa applicant claims to be a widow and there is nothing to contradict that evidence. There is nothing before the Tribunal to indicate that she is presently married or has a de facto partner. On balance, the Tribunal is satisfied that the applicant does not have a spouse. She meets r. 1.03(a). The applicant was born in 1935 and was, at the time of the application, over 80 years of age. She was old enough to be granted an Aged pension. The applicant meets r. 1.03(c).

13. The Tribunal has considered whether the visa applicant is a relative of the sponsor. The sponsor, Mr Singh, told the Tribunal that his father passed away more than 30 years and documentation from that time, such as his father’s birth certificate, is no longer available. He said that he is willing to do a DNA test to prove the relationship. The Tribunal acknowledges that it may be difficult to obtain formal documentary evidence given the passage of time. However, the review applicant provided a number of affidavits from neighbours and the local authorities which refer to the applicant’s relationship with the sponsor. In the particular circumstances of this case, the Tribunal is prepared to accept that more formal documentary evidence may not be available in this case and the Tribunal accepts, having regard to other statements provided, that the visa applicant is the sponsor’s grandmother and a relative.

14. The Tribunal must also consider the visa applicant’s dependence on the sponsor. Mr Singh’s evidence to the Tribunal is that he owns the house in India where his mother and grandmother live. He sends them money whenever needed. Mr Singh states that he sends large amounts and when the money is about to run out, he sends more. Mr Singh states that his grandmother has no pension and has no other income. The pension that she is entitled to is minimal, a couple of hundred rupees, and she does not want to take it. The family used to own land, which they relied on for income, but they sold the land when he came to Australia. His mother is a housewife and had never worked, and she does not have any pension or income. His grandmother has no other income. Mr Singh states that the visa applicant visited Australia about seven times and lived with him for six months to one year at a time. She left for India because his mother was returning to India and she had not been able to come back due to Covid.  

15. Mr Singh states that his sister does not provide financial support to the applicant because she has her own family to take care of and also culturally, it is the son who supports the elders.

16. The Tribunal found Mr Singh to be a truthful witness. The Tribunal accepts that he provides financial support to the visa applicant. There is documentary evidence of regular financial transfers for substantial sums and the Tribunal is satisfied these funds are used to meet the applicant’s basic needs for food, shelter and clothing. In particular, the Tribunal accepts Mr Singh’s evidence that the applicant has no other income and no other source of support. The Tribunal accepts that the applicant is wholly or substantially reliant on the sponsor to meet her basic needs for food, shelter and clothing and was so reliant for a substantial time and a reasonable time before the present application was made. She continues to be so reliant. The Tribunal is satisfied the applicant is dependent on the sponsor.

17. For the sake of completeness, the Tribunal notes that the visa applicant was over the age of 80 when the application was made. Medical evidence indicates that she has been blind since the young age. There are before the Tribunal medical reports relating to the applicant’s poor health. On balance, the Tribunal would accept, in particular having regard to the visa applicant’s age and health, that she was, and continues to be, incapacitated for work due to the partial loss of her bodily or mental functions. The Tribunal is satisfied that the applicant is wholly or substantially reliant on her grandson for financial support because of her incapacity. For that reason also, the Tribunal is satisfied the dependency requirement is met. The applicant meets r. 1.03(b).

18. 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.838.212 and cl.838.221.

    Conclusion

19. 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

20. 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.

    Kira Raif
    Senior Member