Khawaja (Migration)

[2018] AATA 267

Khawaja (Migration) [2018] AATA 267 (2 February 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohammad Khawaja

VISA APPLICANT:  Mrs Musarrat Mukhtar

CASE NUMBER:  1621277

DIBP REFERENCE(S):  2016040718

MEMBER:Robert Wilson

DATE OF DECISION:  2 February 2018

DATE CORRIGENDUM

SIGNED:16 February 2018

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

Removal of paragraph 24, part 2.

Robert Wilson
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohammad Khawaja

VISA APPLICANT:  Mrs Musarrat Mukhtar

CASE NUMBER:  1621277

DIBP REFERENCE(S):  OSF2016/040718

MEMBER:Robert Wilson

DATE:2 February 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 114 (Aged Dependent Relative) visa:

·cl.114.211 of Schedule 2 to the Regulations; and

·cl 114.221 of Schedule 2 to the Regulations

Statement made on 02 February 2018 at 12:28pm

CATCHWORDS

Migration – Other Family (Migrant) (Class BO) visa – Subclass 114 (Aged Dependent Relative) – Sponsor – Eldest child – Sponsor financially supports the visa applicant

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.05A Schedule 2 cls 114.211, 114.221
Social Security Act 1991

CASES
Huang v MIMIA [2007] FMCA 720

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 10 October 2016 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 20 January 2016. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer). In the present case, the visa applicant is seeking to satisfy the criteria for the grant of a Subclass 114 visa which requires the primary visa applicant to be the aged dependent relative of an Australian citizen, permanent resident or an eligible New Zealand citizen. The criteria for a Subclass 114 visa are set out in Part 114 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.114.211 & cl.114.221.

3. The delegate refused to grant the visa on the basis that cl.114.211 was not met because the applicant (the mother) did not satisfy the delegate that she is an aged dependent relative of the sponsor (the son). 

4. The sponsor appeared before the Tribunal on 25 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the applicant. 

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The visa application was made on the basis that the applicant is the aged dependent of the sponsor, who the visa applicant claims is her relative. Relative is also defined in r.1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or niece or nephew (or their step equivalents).

7. In this case, the sponsor is an Australian citizen and is the applicant’s eldest child, and son.

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

8. To be granted a Subclass 114 visa the visa applicant must be an ‘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.114.211 and cl.114.221. ‘Aged dependent relative’ is defined in r.1.03 of the Regulations.

9. 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.

10. In this case, the Tribunal finds that the applicant is an ‘aged dependent relative’, as r.1.03 is met.  She was born on 4 April 1948, so she will turn 70 on 4 April 2018.   Further, the applicant has been a widow since her husband’s death on 24 December 1991 (Death Certificate provided), and she does not have a spouse and she is not in a de facto relationship. She also retired in 2010.  At the time of application, the applicant was 67 years of age and was old enough to be granted an aged pension under the Australian Social Security Act 1991.

11. Furthermore, the sponsor has been providing the applicant with roughly AUS$300 a month, not counting bigger amounts, since December 2010. This is when his mother retired. The sponsor has provided evidence including money transfers through ‘Sydney Forex’ to the applicant who has been living in Pakistan.  The applicant gave evidence at the Tribunal hearing that she uses this money to pay for her food and utility bills. She buys whatever she needs with the money the sponsor provides to her.

12. The applicant will be 70 this year and she suffers from blood pressure and diabetes. She can no longer work.    

13. The following list shows the individual sums of money the sponsor sent to the applicant in Pakistan after she retired in December 2010. The list also shows, in bold, the following times when the applicant stayed with the sponsor and his family in Australia on the following five occasions: 22 December 2010 - 11 October 2011; 31 July 2013 -9  August 2013; 7 September 2013 - 20 November 2013; 6 December 2014 - 28 February 2015; 21 February 2016 - 19 August 2016.  The sponsor owns a four bedroom home in Canberra, where the applicant will stay.

14. 22 December 2010 - 11 October 2011: the applicant stayed with the sponsor in Australia

    9/12/2011       $AUD200 

    23/12/2011      $250

    22/1/2012       $200

    3/2/2012         $450

    10/3/2012       $300

    4/4/2012         $200

    15/10/2012     $400

    16/10/2012     $3,500

    20/112012      $250

    30/11/2012     $260

    3/1/2013         $200

    12/2/2013       $200

    7/3/2013         $200

    2/4/2013         $350

    6/5/2013         $1,800

    14/6/2013       $400

    31 July 2013 - 9 August 2013: the applicant stayed with the sponsor in Australia.

    7 September 2013 - 20 November 2013: the applicant stayed with the sponsor in Australia.

    11/12/2013     $200

    4/1/2014         $200

    2/2/2014         $278

    5/3/2014         $220

    2/4/2014         $650

    5/5/2014         $225

    8/5/2014         $450

    11/6/2014       $344

    26/6/2014       $800

    1/7/2014         $400

    10/8/2014       $350

    31/8/2014       $1,000

    30/9/2014       $300

    1/10/2014       $5,600

    5/11/2014       $300

    6 December 2014 - 28 February 2015: the applicant stayed with the sponsor in Australia.

    2/4/2015         $300

    29/4/2015       $340

    2/3/2015         $254

    2/4/2015         $300

    3/6/2015         $300

    2/7/2015         $300

    31/7/2015       $300

    4/9/2015         $400

    9/10/2015       $450

    4/11/2015       $300

    2/12/2015       $1,500

    12/1/2016       $300

    2/2/2016         $300

    21 February 2016 - 19 August 2016: the applicant stayed with the sponsor in Australia.

    5/9/2016         $400

    5/10/2016       $300

    3/11/2016       $300

    5/12/2016       $550

    9/1/2017         $375

    3/2/2017         $375

    6/3/2017         $375

    6/4/2017         $1,375

    3/5/2017         $375

    2/6/2017         $506

    3/7/2017         $375

    13/7/2017       $252

    2/8/2017         $375

    8/9/2017         $375

    16/9/2017       $430

    5/10/2017       $375

    2/11/2017       $425

    3/12/2017       $375

    4/12/2017       $505

    3/1/2018         $377   

15. The Tribunal finds that the above evidence shows that the applicant has been reliant on the sponsor for a reasonable period and, remains so dependent.

16. The Tribunal finds that the applicant was staying with the sponsor in Australia, at the time of application on 21 July 2016.

17. At the time of decision the applicant remained dependent on the sponsor.

18. At the time of application the sponsor sent the applicant money, and she spent it on her expenses.   When she needs money, she asks for it from the sponsor, and he provides it.   Sometimes, if someone travels from Australia to Pakistan the sponsor sends something with the person for the applicant, but mainly, he sends her money.  She gave evidence at the Tribunal hearing that whatever she wants she buys with his money.

19. At the time of the decision the sponsor was continuing to provide money to the applicant.  

20. The applicant said at the Tribunal hearing that there are some gifts given to her, for example, dresses, but she does not rely on them.  She said her son, the sponsor, is doing everything for her.

21. The applicant lives in a house in Pakistan which is in her name and the sponsor’s name and his sister’s name (Aisha Asad, d.o.b. 7 March 1982).  It does not generate any income.    When the applicant dies she will pass on a half share to both the sponsor and his sister.  The applicant does not live there at night as she goes to her aunt’s home to sleep.. 

22. Further, the sponsor went back to see his mother in Pakistan in July 2017.  She was a bit weak and getting old.

23. The sponsor gave evidence at the hearing that he is the eldest and only son, and it is his moral and religious responsibility to look after his mother.

24. In this case, the applicant is the ‘relative’ of an Australian relative for the purposes of cl.114.211.

    Does the visa applicant have a half the relationship the a Q not the numbers of any the people sitting at what was for a well-informed three hours exist in you all of the trust decisions is a feels Sydney in the baby in decisions in a dry and eight and his are you me on is suitable for the differences was at an or de facto partner?

25. Based on the findings and reasons in relation to whether the visa applicant has been married and her spouse has died; and she has not married again, nor has she been in a subsequent de facto relationship. The Tribunal concludes that subparagraph (a) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.

    Is the visa applicant dependent on the Australian relative?

26. The definition of ‘dependent’ as it applies to this application is set out in r.1.05A(1) of the Regulations. Generally speaking, an applicant will be dependent on the sponsor, if at the relevant time the applicant was wholly or substantially reliant on the sponsor for financial support to meet their basic needs for food clothing and shelter; and their reliance on the sponsor was greater than their reliance on any other person or source of support. An applicant may also meet the requirements where their reliance on the sponsor is due to the total or partial loss of their bodily or mental functions: r.1.05A(1).

27. For the purposes of this application, reference to a ‘substantial period’ in r.1.05A means a period not more substantial than a ‘reasonable period’: Huang v MIMIA [2007] FMCA 720 at [47]. Further, the proper construction of ‘dependent’ in r.1.05A does not carry any implication of the notion of necessity or lack of choice r.1.05A: Huynh v MIMIA (2006) 152 FCR 576 at [43].

28. As to whether the applicant is dependent on her Australian relative within the meaning of r.1.05A, in this case, the Tribunal finds:

    ·The applicant was at the relevant time and for a substantial period immediately prior to that time, wholly or substantially reliant on the sponsor for financial support to meet her basic needs for food, clothing and shelter; and

    ·The applicant’s reliance on the sponsor was greater than any reliance on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter.

29. Further, paragraph (b) of ‘Aged Dependent Relative’ is defined at Regulation 1.03 of the Migration Regulations: in relation to a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means a relative who (b) has been dependent on that person for a reasonable period, and remains so dependent; ... .

30. The Tribunal finds on the evidence that subparagraph (b) of the definition of ‘aged dependent relative’ is met at the time of application and at the time of decision.

    Is the visa applicant old enough to be granted an age pension?

31. To meet the definition of ‘aged dependent relative’ the visa applicant must be old enough to be granted an aged pension under the Social Security Act 1991. Different age qualifications apply for men and women and depend upon the date of the applicant’s birth. Having regard to the following, the Tribunal finds that this is met.

32. Women born before 1949 have already qualified for the Age Pension. Women born in 1949 and beyond now qualify at age 65, the same as men. (Age Pension | Department of Social Services, Australian Government accessed 28 January, 2018.

33. For these reasons subparagraph (c) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.

    Conclusion on cl.114.211/114.221:

34. 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.114.211 and cl.114.221.

35. 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 114 visa.

    DECISION

36. The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 114 (Aged Dependent Relative) visa:

    ·cl.114.211 of Schedule 2 to the Regulations; and

    ·cl 114.221 of Schedule 2 to the Regulations

    Robert Wilson
    Member