Kochhar (Migration) - [2023] AATA 2572

Kochhar (Migration) [2023] AATA 2572 (14 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Parbin Kaur Kochhar
REPRESENTATIVE:  Mr Rodney Calhaem (MARN: 9581377)
CASE NUMBER:  1926531
HOME AFFAIRS REFERENCE(S):          CLF2018/50595
MEMBER:Stephen Conwell
DATE:14 July 2023
PLACE OF DECISION:  Melbourne
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; and
·cl.838.221 of Schedule 2 to the Regulations.

Statement made on 14 July 2023 at 12:12pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – aged dependent relative of an Australian relative – substantial period of dependency – cultural expectations – money transfers – age pension age – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2 cls 838.111, 838.212, 838.221; rr 1.03, 1.05
Social Security Act 1991
CASES
Huang v MIMIA [2007] FMCA 720
Huynh v MIMIA (2006) 152 FCR 576
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 September 2019 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 applied for the visa on 30 May 2018. At that time, 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 delegate refused to grant the visa on the basis that cl 838. 212 was not met because the delegate was not satisfied that the applicant had been, for a substantial period immediately before the application was lodged, wholly or substantially reliant on her sponsor for financial support to meet her basic needs for food, clothing and shelter.
The review applicant (the sponsor) provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.
The applicant was represented in relation to the review by her registered migration agent (representative).
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
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.

Continue reading Kochhar (Migration)

Details

AGLC: Kochhar (Migration) [2023] AATA 2572
Case: [2023] AATA 2572
Decision Date: 14 July 2023

CaseChat Overview and Summary

The applicant sought review of a decision concerning an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 838 (Aged Dependent Relative) visa. The core of the dispute revolved around whether the applicant had been substantially financially dependent on her sponsor, Mr. Daras Bir Singh, for a significant period prior to lodging her application. The applicant claimed to be an aged dependent relative of Mr. Singh, who is an Australian relative.

The legal issues before the court were whether the applicant met the criteria for a Subclass 838 visa, particularly concerning the requirement of being a substantial period of dependency on an Australian relative. This involved assessing the evidence provided to demonstrate that the applicant was fully financially dependent on the sponsor for essential needs such as food, clothing, and shelter, both in Australia and overseas, for a substantial period. The court also considered the relevance of cultural expectations and the applicant's limited financial resources in India, including a plot of land insufficient for her retirement needs.

The court considered statutory declarations from the sponsor and the applicant's daughter, bank statements, and evidence of money transfers. The sponsor stated he had been the primary provider for the applicant's basic needs since her husband's death in 2006, providing weekly cash and lump sums when she travelled. The applicant's daughter confirmed these circumstances and noted her own inability to provide care due to family size and cultural expectations regarding her in-laws. The court found that the applicant met certain criteria for the visa, specifically clauses 838.212 and 838.221 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for the Subclass 838 visa to the Minister for reconsideration, with the direction that the applicant meets the specified criteria.

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’s representative provided the Tribunal with the following documents to support the claim that the applicant was fully financially dependent upon her sponsor for a substantial period prior to lodging the application: ·a statutory declaration made by the sponsor, dated 29 October 2020, stating in part:osince her husband’s death in May 2006 the applicant has been primarily reliant upon the sponsor to meet all her basic needs such as food, clothing, and shelter whilst in Australia as well as for a significant period during her residence in India;owhen the applicant is in Australia the sponsor provides her with cash on a weekly basis (most of which she saves). When she has returned to India or travelled elsewhere the sponsor has given her a lump sum payment. He also sends money through money transfer when she has been overseas; oduring her stay in India the applicant has resided with other relatives, not with her daughter. This was intended to be a temporary arrangement and has since become unsustainable;oin July 2011, whilst overseas, the applicant applied for an offshore Aged Dependent Relative application. This remains on foot;othe applicant does not own a home in India. She does own a plot of land with a market value of which being approx. AUD 20,000-24,000. This was allotted to her at a subsidised (cheaper rate) by the Government of India because of the 1984 Sikh Riots and is insufficient to fund her retirement needs; othe sponsor’s sister, (the applicant’s daughter) is married with her own family. She lives in Mumbai, India, with her husband and a teenage son in a 2 bedroom apartment. She doesn’t have the ability or the space to be able to take care of the applicant. Moreover, for cultural reasons, the sister is expected to have greater care for her in-laws. ·a statutory declaration made by the applicant’s daughter (the sponsor’s adult sister) dated 12 November 2020, confirms her personal and family circumstances as described above and echoes much of the sponsor’s statements confirming that the applicant receives no government pension and that the sponsor has been the primary support for the applicant and her basic needs since the death of their father (the applicant’s husband);·copies of medical consultations and some medicine receipts incurred by the sponsor, many are recurring and not readily documentable; ·the applicant’s bank statements which show no expenses has been paid by her for food or other significant items; ·some funds transfers made by the sponsor in the relevant period;·‘queue advice’ from the Department dated 15 March 2013 regarding the applicant’s application for the offshore equivalent of the same visa that is the subject of this review (subclass 114);·income evidence and income taxation documentation relating to the sponsor.CONSIDERATION OF CLAIMS AND EVIDENCE The visa application was made on the basis that the applicant is the aged dependent relative of Mr Daras Bir Singh, the applicant claims is their 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).

Decision

Reasons for decision

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; and· cl.838.221 of Schedule 2 to the Regulations.Stephen ConwellMember

Ratio Decidendi

Legal Principle Established

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