KAUR v Minister for Immigration and Anor
[2020] FCCA 1835
•8 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1835 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to decision made by the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Other Family (Residence) (Class BU) visa – whether Tribunal made a jurisdictional error by confining its consideration of whether the applicant was an “aged dependent relative” to whether the dependency the applicant claimed she had with the sponsor was a financial dependency – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), Pt.3, Sch.1 Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), reg.1.03, 1.05A(1), Sch.2, cls.838.111, 838.212, 838.213 |
| Applicant: | PARTAP KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1233 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 18 March 2020 |
| Date of Last Submission: | 18 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 8 July 2020 |
REPRESENTATION
| Applicant in person, by telephone, assisted by an interpreter and Mr R Toor |
| Solicitors for the First Respondent: | Mr K Jeyakkumar of HWL Ebsworth Lawyers, by telephone |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1233 of 2017
| PARTAP KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of India, applies for remedies under s.476 of the Migration Act 1958 (Cth) in relation to a decision made by the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant an Other Family (Residence) (Class BU) visa (Aged Dependent Relative visa). The applicant entered Australia in 2016.
Background
To have been granted an Aged Dependent Relative visa the applicant had to satisfy, among other things, cl.838.212 and cl.838.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[1] Clause 838.212 requires that the applicant is “an aged dependent relative of an Australian relative”. The expression “Australian relative” is defined in cl.838.111 to mean “a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen”. “Aged dependent relative” in relation to an “Australian citizen, an Australian permanent resident or an eligible New Zealand citizen” is defined in reg.1.03 to mean a relative who “does not have a spouse or de facto partner”; “has been dependent on that person for a reasonable period, and remains so dependent”; and is “old enough to be granted an age pension under the Social Security Act 1991”.
[1] Although I use the present tense in relation to the Regulations, I am applying the Regulations as they existed on 23 February 2016 when the applicant applied for the Aged Dependent Relative visa.
Under reg.1.05A(1) of the Regulations, a person (first person) is dependent on another person if (among other things):
(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.
Applicant’s claims
In her application for an Aged Dependent Relative visa the applicant claimed she was born in 1930; she married in 1950, but her husband passed away about one year after they married, and the applicant has remained a widow since that time; the applicant has no children from her marriage; after her husband’s death the applicant moved to another village and lived at the parental home with parental family members; in 1964 the applicant adopted two daughters of her sister, Ms VK and Ms SK, after which both daughters lived with the applicant; and Ms VK and Ms SK lived with the applicant until they married.[2] The applicant claimed she is the aged dependent relative of Ms SK (sponsor). The applicant gave substantially the same evidence before the Tribunal.
[2] CB99-100
The applicant supported her application for an Aged Dependent Relative visa with a statutory declaration from the sponsor.[3] The sponsor there stated the applicant is the sponsor’s and Ms VK’s aunty and adopted mother; Ms VK and the sponsor always called the applicant “mum”, and called their biological mother “aunty”; the sponsor and Ms VK knew the applicant as their mother until Ms VK and the sponsor found out about their biological mother; the applicant paid for the schooling of Ms VK and the sponsor; and the applicant also paid for each of their marriages. The sponsor said her family wanted to look after the applicant in Australia. The sponsor gave substantially the same evidence before the Tribunal.
[3] CB71
Tribunal’s reasons
The Tribunal was satisfied the applicant was a credible witness.[4] The Tribunal was also satisfied that the applicant does not have a spouse or de facto partner.[5] The Tribunal, however, was not satisfied the applicant is, and has been for a reasonable period immediately before the applicant applied for the Aged Dependent Relative visa wholly or substantially reliant on the sponsor for financial support to meet her basic needs for food, clothing and shelter; or that the applicant’s reliance on the sponsor is greater than any reliance on any other person or source of support, for financial support to meet her basic needs for food, clothing, or shelter. The Tribunal relied on the applicant’s evidence that she receives a government pension because she had worked as a teacher for 28 years; she continued to live in the family home which she owns; the government pension provided sufficient income with which to support herself, although Ms VK and the sponsor supplemented this at times when she needed medical attention. These findings, based in substantial part on the applicant’s receiving a pension on which she can support herself, also meant the Tribunal was not satisfied the applicant is wholly or substantially reliant on the sponsor for financial support because the applicant is incapacitated for work due to the total or partial loss of her bodily or mental functions.
[4] CB180, [12]
[5] CB181, [24]
The Tribunal therefore affirmed the delegate’s decision because it was not satisfied the applicant was an “aged dependent relative”.
Grounds on which applicant relies
The applicant, who is not legally represented, relies on the grounds set out in the application, in an affidavit, and in written submissions. The applicant also made submissions at the hearing before me, which occurred by telephone. The applicant did so with the assistance of an interpreter. I permitted a person who informed me he was the applicant’s grandson to also assist the applicant.
Grounds of application
The grounds of application begin with a number of sentences which I take to be intended to set out the factual background to the application for an Aged Dependent Relative visa. There then follows eleven paragraphs, each of which I take to be a ground.
Ground 1
Ground 1 is as follows (errors in original):
DIBP and Administrative appeals tribunal made an error by not giving consideration to time era. Applicant is 86 years old and she adopted the twins at a time when there was a lack of legal adoption system. Applicant adopted sponsor and her sister in a socially acceptable system.
The Tribunal was aware and accepted the applicant was 86 years of age; and, given the Tribunal found the applicant to be a credible witness, the Tribunal accepted the essential factual elements of her claims. The ground does not address the ground on which the Tribunal affirmed the delegate’s decision, and that is that the applicant was not a dependent of the sponsor, and the reason on which the Tribunal relied on this ground, namely, the applicant has a pension that is sufficient to support her, and she also owns the house in which she lives in India. Ground 1, therefore, discloses no jurisdictional error.
Ground 2
Ground 2 is as follows (errors in original):
DIBP and Administrative appeals tribunal made an error by not accepting applicant as dependent to sponsor. Applicant is widow. Her husband died one year after her marriage and she has no child out of her relationship. According to prevailing social system in those days, applicant did not remarried and raised the sponsor and her twin sister.
The Tribunal was aware and accepted the facts stated in this ground. The facts, however, are not relevant to the ground on which the Tribunal affirmed the delegate’s decision - the applicant was not an aged dependent relative of the sponsor - and the reasons on which the Tribunal relied, namely, the applicant has a pension that is sufficient to support her, and she also owns the house in which she lives in India. Ground 2, therefore, discloses no jurisdictional error.
Ground 3
Ground 3 is as follows (errors in original):
DIBP and Administrative appeals tribunal made an error by not accepting statement of applicant regarding her evidence of relationship to sponsor.
This ground rests on an incorrect assertion, namely, the Tribunal did not accept the applicant’s evidence of her relationship with the sponsor. The Tribunal accepted the applicant to be a witness of credit and it accepted this part of the applicant’s evidence. Ground 3, therefore, discloses no jurisdictional error.
Ground 4
Ground 4 is as follows (errors in original):
DIBP and Administrative appeals tribunal ignored the fact that sponsor filled the name of her biological mother in her migration application due to ignorance of law, sponsor is only carer of her adoptive mother and there is no one else who can look after 86 years old lady at this age.
This ground refers to two matters. The first is the matter the Tribunal identified in paragraph 20 of its reasons, which relates to inconsistent evidence about when the applicant adopted Ms VK and the sponsor. This discloses no jurisdictional error because, after referring to the inconsistency, the Tribunal said that it “places no weight on the difference in this evidence”. There is nothing to suggest the Tribunal relied on this inconsistency in deciding to affirm the delegate’s decision. This part of ground 4, therefore, discloses no jurisdictional error.
The second matter to which ground 4 is directed is the applicant’s being 86 years of age, and the assertion that there is no one else who can look after the applicant. The Tribunal was aware the sponsor gave evidence that it was difficult for the applicant to cook for herself; that she felt unsafe at night; and she had no family members in India to look after her.[6] But these matters were not relevant to whether the applicant met the definition of “aged dependent relative”. The dependency required by this definition is one of financial support. The Tribunal found the applicant was not dependent on the sponsor for financial support.
[6] CB180, [19]
This part of ground 4, therefore, also fails.
Ground 5
Ground 5 is as follows (errors in original):
DIBP and Administrative appeals tribunal ignored humanitarian grounds by affirming DIBP decision. In absence of carer, applicant will have no life in India at this age. Applicant needs everyday support for her day-to-day activities.
This ground assumes that humanitarian concerns are relevant to whether the applicant meets the definition of “aged dependent relative”. That is not a criterion. Nor is the fact that the applicant may be unable to look after herself relevant. The relevant question for the Tribunal was whether the applicant required the financial support of the sponsor, being the matter the applicant was required to establish if she were to meet the definition of “aged dependent relative”.
Ground 5, therefore, also fails.
Ground 6
Ground 6 is as follows (errors in original):
DIBP and Administrative appeals tribunal made an error by not understanding practical day-to-day needs of applicant due to her age. She never applied till she was healthy and was able to look after herself at her own. She only applied this visa when she needed utmost care from her adopted children.
This ground, too, assumes that whether the applicant would be able to look after herself, quite apart from whether she required financial support, was relevant to whether she met the definition of “aged dependent relative”. As I have already found, that definition is restricted to financial dependency, and the Tribunal was not satisfied the applicant had any such dependency.
Ground 6 also fails.
Ground 7
Ground 7 is as follows (errors in original):
DIBP and Administrative appeals tribunal made an error regarding relationship of applicant to her sibling [name of applicant’s sister]. Although, she filled date of birth . . . 1930, she was actually born one year after birth of applicant. Administrative appeals tribunal by not understanding 1930’s era. In those days, parents use to enter birth details randomly by ignoring the actual dates due to illiteracy.
This ground is directed to the Tribunal’s referring in paragraph 22 of its reasons to the delegate having noted that the date of birth the applicant gave in relation to the applicant’s sister was six months after the applicant’s date of birth. The Tribunal records in its reasons it having put this to the applicant, and it records the applicant’s response. Given the Tribunal accepted the applicant to be a credible witness, it is open to find, and I do find, that the Tribunal accepted the applicant’s explanation. In any event, there is nothing to suggest the Tribunal relied on this apparent inconsistency.
Ground 7, therefore, also fails.
Ground 8
Ground 8 is as follows (errors in original):
DIBP and Administrative appeals tribunal made an error by not understanding 1950’s era in India. In those days, marriage law was not applicable. Marriage registration was not compulsory and society used to be witness of marriages. Couples use to get married in presence of families and society.
This ground appears to assume the Tribunal did not accept the applicant’s claims that she married and became a widow about one year after she married. As I have already noted, the Tribunal accepted the applicant was a credible witness and, therefore, accepted this aspect of the applicant’s claims. The Tribunal affirmed the delegate’s decision, not because it did not accept any part of the applicant’s claims, but because the applicant’s evidence did not satisfy the Tribunal the applicant had a financial dependency on the sponsor.
Ground 8, therefore, also fails.
Ground 9
Ground 9 is as follows (errors in original):
DIBP and Administrative appeals tribunal ignored the fact that India got recent independence at the time when applicant’s husband died. Death registrations were not introduced in those days. Village chokidar used to record deaths after cremations and it is impossible to produce 70 years old record from village chokidaar.
This ground, too, assumes the Tribunal did not accept the applicant’s claims that she married and became a widow about one year after she married. For reasons I have already given, this assumption is incorrect and, for that reason, ground 9 fails.
Ground 10
Ground 10 is as follows (errors in original):
DIBP and Administrative appeals tribunal should have regarded the statements the applicant and sponsor in regard to evidence of relationship and dependency.
This ground assumes the Tribunal did not accept the applicant’s claims that she adopted the sponsor and Ms VK. That assumption is incorrect. The Tribunal also accepted the evidence the applicant and the sponsor gave on which they relied for claiming the applicant was dependent on the sponsor. The dependency the applicant and the sponsor claimed existed, however, was not the dependency the definition of “aged dependent relative” required, namely, financial dependency.
Ground 10, therefore, also fails
Ground 11
Ground 11 is as follows (errors in original):
DIBP and Administrative appeals tribunal ignored the fact that applicant needs physical and moral support at this age. Although she is financially self sufficient but she needs support for her day-to-day activities.
It is true the Tribunal did not regard the non-financial needs the evidence revealed the applicant might have had. As I have already found, however, that the applicant may have such needs is not relevant to whether she falls within the definition of an “aged dependent relative” which requires a financial dependency.
Ground 11, too, fails.
Affidavit
With the application the applicant filed an affidavit. This repeats the grounds contained in the application and, therefore, the affidavit does not call for any consideration.
Applicant’s Written Submissions
The applicant’s written submissions draw attention to various items of evidence in the court book, these being evidence that the applicant walks with a walking stick; she is scared at night and cannot sleep; she is lonely; in March 2016 somebody had called the applicant and informed her that someone had committed theft in her house; the applicant’s claim that “for the last 15 years” the applicant has “been very much dependent on” the applicant’s “adopted twin daughters who live in Australia”; the applicant’s health has deteriorated over the last three years, with the applicant becoming more immobile with age; the applicant could not cook for herself; the applicant’s daughter prepares food for the applicant, and she pays for the applicant’s health insurance and other expenses; the Tribunal found the applicant to be a credible witness; and the applicant’s daughters started to give her money after she came to Australia, and they had sent money to the applicant when she lived in India.
None of these matters suggests that the Tribunal’s conclusion that the applicant was not an “aged dependent relative” of the sponsor was not one that was reasonably open to it. To the extent the Applicant’s Written Submissions refers to evidence of the applicant’s non-financial dependency on the sponsor, that evidence is not relevant to whether the applicant was an “aged dependent relative” because, as I have already noted, the dependency that the definition of “aged dependent relative” requires is one of financial dependency. To the extent the applicant refers to financial assistance the sponsor and Ms VK had given and continue to give to the applicant, that by itself is not capable of preventing a reasonable decision-maker in the position of the Tribunal from arriving at the conclusions that it did, including the conclusion that it was not satisfied the applicant is and has been for a reasonable period of time before she applied for an Aged Dependent Relative visa wholly or substantially reliant on the sponsor for financial support to meet her basic needs for food, clothing, and shelter.
The matters in the Applicant’s Written Submissions, therefore, do not disclose any jurisdictional error by the Tribunal.
Submissions at hearing
At the hearing before me the applicant said she is getting old and fragile; she raised the sponsor and Ms VK; the applicant cannot comb her hair; she needs the sponsor and Ms VK to help her get in and out of a car; the sponsor and Ms VK serve her food; and the applicant cannot live in her house in India, it having been totally demolished by a storm.
What the applicant said to me at the hearing, together with the applicant’s circumstances as revealed by the evidence before the Tribunal, are matters that excite sympathy. Unfortunately, they are not matters to which Aged Dependent Relative visas are intended to respond. The grant of visas of that class are premised on the Minister and, on review, the Tribunal, being satisfied an applicant has had a substantial financial dependency on a relative or on relatives who live in Australia. The Tribunal, for reasons that were reasonably open to it, and in particular, its findings that the applicant owns her home, and the applicant is the beneficiary of a government pension which was sufficient to support her, was not satisfied the applicant had any such financial dependency on the sponsor.
The applicant’s oral submissions, therefore, also disclose no jurisdictional error.
Disposition
The applicant has not succeeded on any of the grounds or submissions on which she relies. I propose, therefore, to order that the application be dismissed.
At the conclusion of the hearing I invited submissions about costs. I informed the applicant that costs follow the event. Mr Jeyakkumar, who appeared for the Minister, said, if successful, the Minister would seek an order for costs, and an order that the costs be set in the amount of $5,600. The applicant submitted the amount was too great. I am satisfied that it is appropriate that costs should follow the event. I am also satisfied that $5,600 is reasonable, it being less than the amount provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth). I also propose, therefore, to order that the applicant pay the Minister’s costs set in the amount of $5,600.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 8 July 2020
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