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

1. 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).

2. 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.

3. 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.

4. The review applicant (the sponsor) provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

5. The applicant was represented in relation to the review by her registered migration agent (representative).

6. 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.

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

   Background

8. The applicant was born in May 1944 in India and is a citizen of India.  She has been widowed since May 2006 and has two children – a married daughter (who lives in India with her own family) and a son, her sponsor, residing in Australia, with his own family.

9. The  sponsor claims that he had been supporting his mother since the death of her husband (his father) in May 2006.  Since the date of her visa application the applicant has been living in Australia during the following periods:

   ·10 September 2014 until 24 August 2015;

   ·31 March 2016 until 11 February 2017;

   ·5 March 2018 to the present.  

10. In the decision record dated 9 September 2019, the delegate notes that despite several requests for further information  the applicant had not provided a full disclosure of her personal income or of her basic needs and expenses in any country; the delegate was therefore unable to determine whether, in the three year period under review, she was able to meet the cost of her basic needs expenses through other sources, or that her reliance on her sponsor was greater than any reliance by her on any other person or source of support for financial support to meet her basic needs. Consequently, the delegate was not satisfied that the requirements of regulation 1.05A ( 1)(a) were met by the applicant at time of lodging the application.

11. 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

12. 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).

13. In this case Mr Daras Bir Singh is the applicant’s son who was an Australian citizen at the time of application.

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

14. To be granted a Subclass 838 visa the 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.838.212, cl.838.221 and cl.838.111. ‘Aged dependent relative’ is defined in r.1.03 of the Regulations.

15. 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.

16. The Tribunal is satisfied that the applicant was widowed in 2006 and does not have a spouse or de facto partner.  Therefore she meets subparagraph (a) of the definition of ‘aged dependent relative’ at the time of application and the time of decision.

    Is the applicant dependent on the Australian relative?

17. 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 their relative, if at the relevant time the applicant was wholly or substantially reliant on their relative for financial support to meet their basic needs for food clothing and shelter; and their reliance on their relative was greater than their reliance on any other person or source of support. An applicant may also meet the requirements where their reliance on their relative is due to the total or partial loss of their bodily or mental functions: r.1.05A(1).

18. 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].

19. The applicant has provided evidence that she resided with her sponsor (her son) and his family in his home for the greater portion of the time since September 2014 and continues to do so.  When she has lived in India (since being widowed) she has resided with her nephew and his family since her daughter is married with her own family and does not have the room, (nor is it culturally acceptable) to accommodate and support her.  Her sponsor and his sister have provided statutory declarations confirming that  since their father’s death in 2006 the sponsor has been providing the applicant with financial support to meet all her basic needs. The sponsor has provided evidence of remittances made by the sponsor to the applicant (when she was in India). The Tribunal is satisfied that the total funds remitted have been to provide accommodation, food and clothing for the applicant.

20. During the periods the applicant has been in Australia, she has resided with her sponsor and his family and been fully financially supported by him for her accommodation, food, clothing and medical expenses.

21. Based on the documentary evidence provided by the applicant and the statutory declarations provided by the applicant’s sponsor, and his sister, the Tribunal is satisfied that the applicant has been fully financially supported by her sponsor since June 2006, that is, for a substantial period prior to the application being lodged, and she has been more reliant on her sponsor (her son) than on any other person or source of support.

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

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

23. To meet the definition of ‘aged dependent relative’ the applicant must be old enough to be granted an age pension under the Social Security Act 1991.  The applicant is currently 79 years old and she is therefore old enough to be granted an age pension under the Social Security Act 1991.  She therefore meets the requirements of subparagraph (c) of the definition of ‘aged dependent relative’ the time of application and the time of decision.

24. 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.838.212 and cl.838.221.

25. 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

26. 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 Conwell
    Member