Kaur v Minister for Immigration - [2005] FMCA 839

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 839

MIGRATION – MRT decision – aged dependent relative visa – Tribunal not satisfied as to financial support – finding of “no evidence” – whether failed to consider sworn oral evidence – no error found.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.483A, Pt 8
Migration Regulations 1994 (Cth), regs.1.03, 1.05A, 1.05A(1)(a)(i), 1.05A(2), Sch.1 item 1123B, Sch.2 items 838.111, 838.212

Applicant:

AVTAR KAUR

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG1932 of 2004

Judgment of:

Smith FM

Hearing date:

15 June 2005

Delivered at:

Sydney

Delivered on:

6 July 2005

REPRESENTATION

Counsel for the Applicant:

Mr R Nair

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the first respondent’s costs in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1932 of 2004

AVTAR KAUR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which challenges a decision of the Migration Review Tribunal (“the Tribunal”) dated and handed down on 23 February 2004. The Tribunal affirmed a decision of a delegate which refused to grant an Other Family (Residence) (Class BU) visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76-7], and in subsequent cases, the limitations have the effect that I cannot set aside the…

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

Case: [2005] FMCA 839
Decision Date: 6 July 2005

CaseChat Overview and Summary

The case of Kaur v Minister for Immigration involved an application under section 483A of the Migration Act 1958 (Cth) to challenge a decision made by the Migration Review Tribunal (the Tribunal) to refuse the grant of an Other Family (Residence) (Class BU) visa to the applicant. The applicant, an elderly woman, is the mother of an Australian citizen and claimed that her son had been supporting her financially since her husband’s death in 1991. The Tribunal found that the applicant did not meet the criteria for the visa because she was not financially dependent on her son as required by the relevant regulations. The key issue before the court was whether the Tribunal had made a jurisdictional error in its reasoning that led to its conclusion about the applicant's financial dependency.

The court examined the Tribunal's reasoning and found that the Tribunal did not intend to express a conclusion that there was no evidence upon which it might find financial dependency was established. The court noted that the Tribunal had considered the nominator's sworn evidence, which stated that he wholly supports his mother financially. The court concluded that the Tribunal had been aware of the relevant oral evidence and had not overlooked it. The court held that the Tribunal's decision was not affected by jurisdictional error and therefore dismissed the application.

In its judgment, the court ordered that the application be dismissed and that the applicant pay the first respondent’s costs in the sum of $4,500. The court did not find any jurisdictional error in the Tribunal's decision and hence upheld the Tribunal's findings regarding the applicant's financial dependency on her son. The court's decision underscores the importance of considering all relevant evidence when determining the financial dependency of an applicant for a visa under the Migration Act.

Orders

Orders of the court

Application dismissed.

Applicant to pay the first respondent’s costs in the sum of $4,500.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In my view, the relevant reasoning is found in the following two paragraphs: 31.At the hearing the visa applicant confirmed her migration history as set out in the Department and Tribunal files. In response to questions from the Tribunal the visa applicant testified to the effect that she supported herself in India from land that she sold 5 years ago. Asked whether she could produce evidence of this sale she said that she could not do so. Asked whether her other children resident in India support her, she said that they did not. At the hearing the nominator gave sworn evidence to the effect that he wholly supports his mother financially. Questioned about how he transfers money to her he claimed that he does so by giving money to friends who give it to his mother. Asked why he chooses this method, he stated that he also transfers money via someone in Hong Kong. 32.Based on the above oral and documentary evidence the Tribunal is not satisfied that at the date of application or at the date of decision the visa applicant meets criteria for grant of a Other Family (Residence) (Class BU) visa. This is because the Tribunal finds that the visa applicant is not financially dependent upon her nominator as that term is understood in the relevant regulations. The evidence in support of the visa applicant’s claim, other than her oral testimony comprises an undated certified copy of an affidavit stamped on 28 November 2003 to the effect that on 15 October 2001 Joginder Kaur withdrew 1500 rupees from an account that she holds jointly with the visa applicant. This affidavit does not disclose the source of the 1500 or whether the rupees were withdrawn for the benefit of the visa applicant. The Tribunal notes that the visa applicant entered Australia on a visitor visa on 2 October 2001 and was in Australia on 15 October 2001. This is the date on which Joginder Kaur claims to have withdrawn 1500 rupees. In oral evidence the nominator claimed that he provides his mother with financial support by sending money for her through friends. The Tribunal notes that there is no documentary evidence of financial transfers after 1993. There is no evidence that the nominator has paid for the visa applicant’s travel tickets or any other expense that she has incurred at any time. The Tribunal finds that there is no evidence to support a finding that the nominator provides financially for the basic needs or any other financial needs of the visa applicant. Accordingly, the Tribunal finds that the visa applicant has not discharged her evidentiary burden that she is and has been financially dependent upon the nominator for a reasonable time. (emphasis added) After giving careful consideration to the Tribunal’s reasons, I have decided that the Tribunal did not intend in the challenged sentence (which I have emphasised) to express a conclusion that there was no evidence before it upon which it might find that financial dependency was established. I cannot accept that the Tribunal might have overlooked the general sworn evidence, and failed to have taken it into account for that reason. Most significantly, it expressly reminded itself in the previous paragraph that “at the hearing the nominator gave sworn evidence to the effect that he wholly supports his mother financially”. Within the paragraph containing the challenged statement, the Tribunal refers to “the evidence in support of the visa applicant’s claim, other than her oral testimony (emphasis added)”. This suggests that the Tribunal was aware that there was relevant oral evidence which it should consider.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which challenges a decision of the Migration Review Tribunal (“the Tribunal”) dated and handed down on 23 February 2004. The Tribunal affirmed a decision of a delegate which refused to grant an Other Family (Residence) (Class BU) visa to the applicant. Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76-7], and in subsequent cases, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for the visa. The applicant is the elderly mother of an Australian citizen, who claimed to have wholly or substantially supported her since her husband’s death in 1991 in the Punjab. He claimed to have sent her funds by money transmissions and informal means during periods when she resided in India. He also claimed to have wholly supported her during a protracted visit to Australia she made between August 1997 and March 1999, and again since her last arrival in Australia on 2 October 2001. She lodged an application for the present permanent residence visa on 29 August 2002 with the assistance of a migration agent. A class BU visa is available to an applicant who applies in Australia and is present in Australia (see Migration Regulations 1994 (Cth) (“the Regulations”) Sch.1 item 1123B), and is nominated by an eligible family member. Of its sub‑classes, the applicant sought to qualify only under subclass 838 as an “aged dependent relative”. The critical criterion, which must be met at time of application and decision, is provided in Sch.2 item 838.212, which itself invokes definitions under the Regulations. Counsel for both parties accepted that the Tribunal correctly identified and extracted the relevant provisions as follows: 13.One necessary criterion for a subclass 838 (Aged Dependent Relative) visa is clause 838.212, which states: 838.212The applicant is an aged dependent relative of an Australian relative. 14.The term “Aged dependent relative” is defined by regulation 1.03, which states: 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)has never married, or is widowed, divorced or formally separated from his or her spouse; and (b)has been dependent on that person for a reasonable period, and remains so dependent; and (c)is old enough to be granted an age pension under the Social Security Act 1991. 15.The term “Australian relative” is defined by clause 838.111, which states: Australian relative means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. 16.“Dependent” is defined by regulation 1.05A, as set out below: (1)Subject to subregulation (2), a person (the first person) is dependent on another person if: (a)at the time when it is necessary to establish whether the first person is dependent on the other person: (i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and (ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions. (2)A person (the first person) is dependent on another person for the purposes of an application for: [Paragraphs 1.05A(2)(a), (b) and (c) were omitted by SR No. 259 of 2000 with effect from 1 November 2000.] (d)a Protection (Class XA) visa; or (e)a Refugee and Humanitarian (Migrant) (Class BA) visa; or (ea)a Refugee and Humanitarian (Class XB) visa; or [Paragraphs 1.05A(2)(f), (g) and (h) were omitted by SR No. 259 of 2000 with effect from 1 November 2000.] (i)a Temporary Safe Haven (Class UJ) visa; if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support. 17.Subregulation 1.05A(2) is not applicable in this case.