Kaur (Migration) - [2025] ARTA 414

KAUR (MIGRATION) [2025] ARTA 414 (13 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Partap Kaur
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2412374

Tribunal:Senior Member K Raif
Place:Sydney
Date: 13 March 2025
Decision:The Tribunal sets aside the decision under review and 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,
·cl 838.213 of Schedule 2 to the Regulations,
·cl 838.221 of Schedule 2 to the Regulations

Statement made on 13 March 2025 at 9:43am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – adoptive mother of the sponsor – applicant is also a biological aunt of the sponsor – a parent / child and an aunt / niece relationship would be sufficient to satisfy the “relative” requirement – applicant is a relative of the sponsor – applicant is the aged dependent relative of an Australian relative – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.05, Schedule 2, cls 838.212, 838.213, 838.221
Social Security Act 1991

CASES
Kaur v MICMA [2024] FCA 435
STATEMENT OF REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 6 May 2016 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 is a national of India, born in June 1930. She applied for the visa on 24 February 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 an aged dependent relative of her Australian relative. The delegate was also not satisfied the applicant was a relative of the sponsor. The applicant seeks review of the delegate’s decision.
In March 2017 the first Tribunal (differently constituted) affirmed the decision under review. The applicant sought judicial review of the Tribunal’s decision and the matter was remitted for reconsideration.
The applicant appeared before the present Tribunal on 12 March 2025 to give evidence and present arguments. She has indicated that she could not understand the proceedings well and preferred the Tribunal to take evidence from the sponsor. The applicant’s representative supported that course of action and the Tribunal took evidence from the sponsor and gave the applicant the opportunity to present evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review. 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 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 visa application was made on the basis that the applicant is the aged dependent relative of her adopted daughter. 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).
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).
Primary decision
The applicant provided to the Tribunal a copy of the primary decision record. It indicates that she made the application in February 2016 on the basis of being an Aged Dependent Relative of her adoptive daughter Ms Sukhvinder Kaur (the sponsor). She claimed that her spouse had passed away. With respect to dependence, the applicant stated when making the application that she was financially dependent on her two nieces, who were adopted by her, Sukhvinder Kaur and Virinder Kaur, for 15 years each.
The delegate noted that the applicant had not provided any evidence of her relationship with the two adopted daughters when the application was made. She subsequently provided some evidence, mainly in the form of affidavits. With respect to her dependence on the sponsor, the applicant claimed that there was no documentary evidence of financial support as the family visited India and gave her things and cash. However, the delegate noted that in the three years before the application was made, the sponsor made one trip overseas between February and April 2014. The delegate also noted that the applicant had not provided receipts for any purchases made by the sponsor for her.
The delegate noted that other than an affidavit, the applicant failed to provide evidence of her spouse’s death and the delegate was not satisfied the applicant was widowed or not in any other relationship. The delegate noted that the applicant failed to provide evidence of her relationship with the sponsor. It is noted that the applicant referred to her sister on the application form but claimed that the sister was born in December 1930 (six months after the applicant) and did not provide the sister’s birth certificate.
The delegate notes that in the affidavit dated April 2016 the applicant claimed to have adopted the sponsor and her sister in 1964 from her sister Surjit Kaur and there was no legal documentation to evidence adoption. However, in an earlier declaration submitted at the time of application, the applicant claimed to have adopted the two children at birth (November 1961) and the two daughters also provided declarations claiming to have been adopted at birth. The delegate was not satisfied the two were adopted by the applicant and that the applicant was a relative of the sponsor.
With respect to dependency, the delegate noted that the applicant had not provided evidence of her income, savings, investments, etc. There was no evidence of any money transfers between the sponsor and the applicant to evidence financial dependence. There was no indication of the applicant’s basic needs expenses. The delegate noted that the applicant claimed to have owned a property in India where she lived until arrival in Australia, and to receive a pension in India. The delegate was not satisfied the applicant was dependent on the sponsor.
First Tribunal decision
The Tribunal affirmed the delegate’s decision in March 2017. In her oral evidence to the first Tribunal the applicant claimed that the sponsor is one of twin girls who were the biological children of her sister and she adopted them at birth. The applicant claimed that the adoption was not through a legal process and there was no legal registration. The applicant stated that when growing up, the children spent time with their biological family and were aware of the relationships and both had identified their biological mother as their mother on the Australian visa applications.
The applicant told the Tribunal there were no birth records for herself and her sister. The applicant claimed that she had made a mistake when claiming the adoption took place in 1964 rather than 1961 and she confirmed that she had adopted the children at birth, which was in 1961. The applicant also said that she made a mistake about her sister’s date of birth as her sister is 3 years younger than her.
The first Tribunal found the applicant to be a credible witness. The Tribunal accepted her evidence that her husband died around 1951 and that no death records were available. The Tribunal was satisfied that the applicant did not have a spouse or de facto partner.
With respect to dependence, the applicant told the first Tribunal that she received an Indian government pension of Rs 14,000 a month and owned the home where she lived and the applicant stated that her pension was sufficient to support herself but her daughters also supplemented her income by sending of Rs 5-7000 through family and friends.
The Tribunal noted the applicant’s evidence that she owned her own home and that the government pension was sufficient to support herself, while the sponsor paid for additional costs such as medication. The delegate was not satisfied that prior to the application being made, the applicant was dependent on her daughter.
The applicant sought judicial review of the Tribunal’s decision and in May 2024 the matter was remitted to the Tribunal for reconsideration (Kaur v MICMA [2024] FCA 435). This is primarily because the Tribunal erred in finding when the applicant travelled to Australia and failed to consider whether the period of her residence in Australia prior to the application being made (some five months) was a reasonable period for the purpose of establishing dependence.
Summary of evidence before the present Tribunal
The applicant provided a written statement to the Tribunal on 11 March 2025, stating that she has been living with her daughters since arriving in Australia and has been fully reliant on her daughters to meet her needs. The applicant states that she cannot return to India where she has no support and cannot support herself independently. The applicant states that she would not be a burden on Australia
The sponsor told the Tribunal the applicant arrived in Australia in September 2015 and since that time she has been living with both daughters who also provide her with financial support. The sponsor states that the applicant gets about $200 a month as pension from India. Both daughters share the financial responsibility for the applicant and pay for her food, clothing and other expenses.
The sponsor told the Tribunal that before coming to Australia, the applicant was living by herself in her own house (which has since been demolished). The sponsor said that sometimes they would give money to the applicant but she ‘managed herself’. The sponsor said that they used to regularly send money through people travelling overseas and she also used to buy things for the applicant whenever she travelled (she could not recall whether she travelled to India after 2013). She states that when money was sent to the applicant overseas, there was no fixed amount, may be a few hundred dollars at the time and she did not know what these funds were used for and how the pension money and the money sent from Australia were being used. The sponsor’s sister also stated that she had sent money to the applicant to do dental work and for other needs.
With respect to the relationship, the sponsor told the Tribunal that she and her sister were adopted by the applicant. The sponsor told the Tribunal that at the time, there was no formal adoption available. The applicant spoke to her mother and had adopted her and her sister by agreement. The sponsor states that after the adoption, she and her sister were living with the applicant and not with their biological parents and went to the school where the applicant was teaching. The sponsor denied telling the first Tribunal that they had lived with biological parents. The sponsor stated that when applying for her own visa, she gave details of her biological mother because there was no documentary proof of adoption and it is her biological mother who is recorded as the parent on her Indian passport.
Is the applicant a dependent relative of an Australian relative?
Is the applicant a relative of the sponsor?
The applicant claims to be the adoptive mother of the sponsor. There is no evidence of adoption before the Tribunal and the evidence is that there was no formal adoption as such adoption was not available at the time. The applicant is also a biological aunt of the sponsor and to support that claim a number of affidavits had been provided with the application.
The delegate noted that there was no probative evidence of relationship such as birth records and the applicant claims such evidence is not available. The Tribunal found the applicant and sponsor to be credible witnesses and there is nothing to contradict the claim of their biological relationship. The Tribunal notes that both a parent / child and an aunt / niece relationship would be sufficient to satisfy the “relative” requirement. Despite lack of documentary evidence, the Tribunal accepts that there is such relationship between the applicant and the sponsor. That is, the applicant is a relative of the sponsor. The Tribunal is satisfied the applicant was sponsored by an Australian relative who had turned 18 and was a settled Australian citizen / permanent resident who was usually resident in Australia. the applicant she meets cl. 838.213.
The applicant is 95 years of age and is old enough to be granted an Aged pension. She claims her husband died soon after marriage. Although there is no documentary evidence to support that claim, there is nothing before the Tribunal to suggest the applicant has a spouse or de facto partner and, given her age, the Tribunal considers it plausible that the applicant is a widow. The Tribunal accepts her evidence that the applicant is a widow and does not have a spouse or de facto partner. The Tribunal is satisfied the applicant meets r. 1.03(a) and (c).
Is the applicant dependent on the sponsor?
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).
The applicant must have been dependent on the sponsor for a ‘substantial period’ (referred to in reg 1.05A) or a reasonable period (referred to in r. 1.03). The two terms were considered in Huang[1]. In that case, the Court noted that the clear purpose of the Regulations was to ensure that the sponsor had a genuine responsibility to support the applicant and had been doing so for long enough prior to the application to demonstrate the alleged relationship of dependence was real and enduring.[2] In short, ‘substantial period’ should be understood to be a lengthy period (at [43]). The Court in Huang contrasted this with ‘reasonable period’ which it noted, need not be lengthy. In reconciling these two differing concepts, the Court concluded that reg 1.03 the definition of ‘aged dependent relative’ with its reference to ‘reasonable period’, was the predominant provision and took precedence over the definition of ‘dependent’ in reg 1.05A. The consequence being that the reference in the definition of ‘dependent’ to ‘substantial period’ was required to be read down to mean a period not more substantial than a reasonable period (at [47]).
[1] Huang v MIMIA [2007] FMCA 720
[2] ibid at [37], [43]
The court further held that the term ‘reasonable period’ the need not be a lengthy period, and that individual circumstances will affect what amounts to a reasonable period (at [44]).
Departmental policy guidelines interpret a ‘reasonable period’ in this context as being three years, or a lesser period if otherwise satisfied that the applicant has received ongoing support from the Australian relative[3] (emphasis added).
[3] Policy - Migration Act - Act- defined terms instructions - s5G -s5G - Relationships and family members - Dependent family members – Dependent – Dependency assessment factors – 37 The required period of dependency, reissued 14 December 2016
The evidence before the Tribunal, which the Tribunal accepts, is that since her arrival in Australia in September 2015, the applicant has been living with the sponsor, or the sponsor’s sister, and has been reliant on the sponsor and her sister for financial support. Her pension is approximately $200 a month, with other support being provided by the sponsor and her sister.
The Tribunal accepts that evidence and accepts that since her arrival in Australia, the applicant has been living with her daughters and that she has been financially dependent upon her daughters. The Tribunal accepts that while the applicant continues to receive a pension from India, the daughters provide a far greater level of financial support which includes accommodation and financial contribution towards other daily needs. That is, the Tribunal accepts that the applicant’s reliance on her daughters is greater than her reliance on any other source. The Tribunal also accepts that the daughters provide the finances for the applicant to meet her basic needs for food, shelter and accommodation. The Tribunal accepts that since her arrival in Australia, the applicant has been dependent on her daughters.
The evidence indicates that the applicant arrived in Australia in September 2015 and the application for the visa was made in February 2016. That is, the applicant has been living in Australia for about five months by the time the application was made.
The evidence is that prior to her arrival in Australia, the applicant lived in her own home. She received a pension which, she told the previous Tribunal, was sufficient to cover her basic needs. The evidence indicates that the sponsor and her sister have been providing financial support to the visa applicant by sending her money irregularly through those who travelled to India, and such funds were used for her medical expenses, to purchase furniture or other items that she needed, and to pay for house repairs. The evidence does not establish that when living in India, the applicant was reliant on the sponsor to meet her basic needs for food, shelter and clothing. The evidence indicates that she was not reliant on anyone for shelter while there is insufficient evidence to establish reliance for food and clothing, noting that the applicant was receiving a pension. Importantly, the evidence does not indicate that while in India, the applicant’s reliance on the sponsor was greater than her reliance on any other source, such as a pension.
The Tribunal is not satisfied on the evidence before it that the applicant relied on the sponsor financially for her basic needs for food, shelter and clothing when she lived in India as the applicant appears to have relied on her pension to meet those basic needs. Further, the Tribunal is not satisfied that when the applicant lived in India, the applicant’s reliance on the sponsor to meet her basic needs was greater than her reliance on her pension. The Tribunal is not satisfied that prior to her arrival in Australia, the applicant was dependent on the sponsor within the meaning of r. 1.05A.

The applicant has been living in Australia for approximately five months before the application was made. The Tribunal has considered whether that period can be considered a ‘substantial period’, or a ‘reasonable period’. As noted above, the court held in Huang that a substantial period need not be longer than a reasonable period and that a reasonable period need not be a lengthy period. The court noted that the purpose of this provision is to ensure the sponsor has a genuine responsibility to support the applicant. In the Tribunal’s view, when considering the entirety of the evidence and the length of time over which the dependence has been established (some ten years at the time of this decision), this has occurred in the present case.
The Tribunal has accepted that the applicant has been fully dependent on the sponsor since September 2015 when she arrived in Australia. This is a period of close to ten years. There has also been some degree of reliance on the sponsor prior to the applicant’s entry to Australia, although not sufficient to meet the migration definition of ‘dependence’. The sponsor has been providing financial support to the applicant for a period well in excess of ten years and has every intention of continuing to provide that support. The Tribunal is satisfied the applicant has been receiving ongoing support from the sponsor and the policy provides that a lesser period than three years may be considered as a reasonable period in certain circumstances.
In the particular circumstances of this case, the Tribunal is satisfied the applicant has been dependent on the sponsor for a substantial period and a reasonable period before the application was made. The applicant meets r. 1.03(b).
The Tribunal finds that the applicant is an aged dependent relative of the sponsor within the meaning of r. 1.03 and for the purpose of cl. 838.212 and cl. 838.221.
Conclusion
For the reasons set out above, the Tribunal has determined 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. The Tribunal is also satisfied the applicant was sponsored by an Australian relative and that she meets cl. 838.213. 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,
· cl. 838.213 of Schedule 2 to the Regulations,
· cl. 838.221 of Schedule 2 to the Regulations.
Date(s) of hearing 12 March 2025
Representative for the Applicant: Ms Harvinder Kaur Bola (MARN: 0324812)