Mala (Migration) - [2021] AATA 3751

Mala (Migration) [2021] AATA 3751 (27 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Basant Mala
CASE NUMBER:  1830720
HOME AFFAIRS REFERENCE(S):          CLF2017/44322
MEMBER:M. Edgoose
DATE:27 September 2021
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 27 September 2021 at 10:20am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – dependent for a reasonable period – substantial reliance for 3 months at time of visa application and continuing since then – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations, rr 1.03, 1.05A(1), Schedule 2, cls 838.212, 838.221
Social Security Act 1991 (Cth)
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 3 October 2018 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 19 June 2017. 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.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa application was made on the basis that the applicant is the aged dependent relative of Seleno Gupta, who the applicant claims is their relative. Relative is also defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or niece or nephew (or their step equivalents).
In this case Seleno Gupta is an Australian citizen and is the applicant’s niece.
Is the applicant an aged dependent relative of an Australian relative?
To be granted a Subclass 838 visa the applicant must be a ‘aged dependent relative’ of an Australian citizen, permanent resident or eligible New Zealand citizen (the Australian relative) at 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 Mala (Migration)

Details

AGLC: Mala (Migration) [2021] AATA 3751
Case: [2021] AATA 3751
Decision Date: 27 September 2021

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 838 (Aged Dependent Relative) visa. The applicant sought review of a decision that affirmed the refusal of their visa application. The applicant claimed to be the aged dependent relative of Seleno Gupta, an Australian citizen and the applicant's niece.

The Tribunal was required to determine whether the applicant met the criteria for an Aged Dependent Relative visa. This involved assessing whether the applicant was a 'relative' as defined, did not have a spouse or de facto partner, had been dependent on the Australian relative for a reasonable period and remained so dependent, and was of an age to be granted an aged pension. The central issue revolved around the interpretation and application of the 'dependent' requirement under regulation 1.05A of the Migration Regulations 1994.

The Tribunal found that the applicant met the criteria of being a 'relative' and not having a spouse or de facto partner. However, the delegate had not been satisfied that the applicant had been dependent on the sponsor for a reasonable period. While the sponsor had covered the applicant's expenses for three months prior to the application, this was not considered a sufficient period of dependency. Furthermore, the delegate found no evidence of financial support between 2014 and 2016. The Tribunal noted that 'dependent' under regulation 1.05A means being wholly or substantially reliant on the relative for financial support for basic needs, and this reliance must be greater than reliance on any other person or source.

Consequently, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the applicant met the criteria under clauses 838.212 and 838.221 of Schedule 2 to the Regulations, indicating that the remaining criteria, particularly those relating to dependency, required further assessment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. CONSIDERATION OF CLAIMS AND EVIDENCE The visa application was made on the basis that the applicant is the aged dependent relative of Seleno Gupta, who the applicant claims is their relative. Relative is also defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or niece or nephew (or their step equivalents). In this case Seleno Gupta is an Australian citizen and is the applicant’s niece. Is the applicant an aged dependent relative of an Australian relative? To be granted a Subclass 838 visa the applicant must be a ‘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 reg 1.03 of the Regulations. Broadly speaking, a person will be an ‘aged dependent relative’ of another if: they are a ‘relative’ within the meaning of reg 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 (Cth). In this case, the applicant is the ‘relative’ of an Australian relative for the purposes of cl 838.212.Does the applicant have a spouse or de facto partner? The applicant has never married and does not have any children of her own. For these reasons subparagraph (a) of the definition of ‘aged dependent relative’ is met at the time of application and at the time of decision.Is the applicant dependent on the Australian relative? The definition of ‘dependent’ as it applies to this application is set out in reg 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: reg 1.05A(1). For the purposes of this application, reference to a ‘substantial period’ in reg 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 reg 1.05A does not carry any implication of the notion of necessity or lack of choice reg 1.05A: Huynh v MIMIA (2006) 152 FCR 576 at [43]. According to the delegates decision the applicant arrived in Australia on 20 March 2017 and since that time has been living with the sponsor. The delegate noted that the sponsor had been paying for all of the applicant’s expenses in the 3 months prior to the lodgement of the Aged Dependent Relative application on 19 June 2017 which was not considered a reasonable period for financial dependency prior to the lodgement. The delegate was not satisfied the sponsor had been providing the applicant with financial support from 2014 to 2016 as there was no evidence submitted to support this claim.

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.M. EdgooseMember

Ratio Decidendi

Legal Principle Established

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