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)…

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 Kaur (Migration)

Details

AGLC: Kaur (Migration) [2025] ARTA 414
Case: [2025] ARTA 414
Decision Date: 13 March 2025

CaseChat Overview and Summary

The case involved Kaur, who sought a review of the Tribunal's decision regarding her eligibility for a Subclass 838 visa, which is an Aged Dependent Relative visa. Kaur argued that she was the adoptive mother of the sponsor and also her biological aunt, thereby qualifying as a relative of the sponsor. The core dispute was whether Kaur was an aged dependent relative of an Australian relative and if she met the dependency requirements to satisfy the visa criteria. The Federal Court was tasked with reviewing the decision made by the Tribunal.

The legal issues that the court had to address were whether Kaur was indeed a relative of the sponsor and if she could be considered an aged dependent relative. The court needed to determine if the relationship between Kaur and the sponsor was sufficient to meet the visa requirements and if Kaur had established sufficient dependency on the sponsor prior to the visa application. The court also had to consider whether the Tribunal had correctly assessed the evidence regarding the applicant's period of residence in Australia and if this period was reasonable for establishing dependence.

The court found that the Tribunal had made an error in determining when Kaur arrived in Australia and failed to properly consider whether the five-month period of her residence in Australia was reasonable for establishing dependency. This led to the decision being remitted to the Tribunal for reconsideration. The court emphasised that the relationship between Kaur and the sponsor, whether through adoption or as aunt and niece, was sufficient to satisfy the "relative" requirement. The court also noted that the evidence regarding Kaur's dependency on her sponsor needed to be thoroughly assessed, including any financial support provided by her daughters and the pension she received from India.

The court's decision resulted in the Tribunal's original decision being remitted for reconsideration, ensuring that the Tribunal properly evaluated the evidence concerning Kaur's period of residence and dependency. The court did not make a final ruling on the visa eligibility but directed that the Tribunal review the matter with the correct legal framework and evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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?

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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