Malhotra (Migration)

[2022] AATA 3499

Malhotra (Migration) [2022] AATA 3499 (7 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Chander Kanta Malhotra

REPRESENTATIVE:  Mr Ganesh Krishnan (MARN: 1678495)

CASE NUMBER:  2110242

HOME AFFAIRS REFERENCE(S):          CLF2009/10328

MEMBER:Meredith Jackson

DATE:7 July 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.

Statement made on 07 July 2022 at 9:52am

CATCHWORDS
MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – health criteria – advanced retinitis pigmentosa resulting in visual impairment – unique and exceptional circumstances – 89 years of age – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 804.225; Schedule 4, PIC 4005

statement of decision and reasons

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant an Aged Parent (Residence) (Class BP) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 22 January 2009. At the time the visa application was lodged, the Aged Parent (Residence) (Class BP) visa contained one subclass, Subclass 804 (Parent): Item 1124A in Part 1 of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). The criteria for a Subclass 804 visa are set out in Part 804 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 804.225.

3. The delegate refused to grant the visa on 3 August 2021 on the basis that cl 804.225 was not met because the applicant did not meet Public Interest Criterion (PIC) 4005(1)(c)(ii)(A).

4. The applicant, Mrs Chander Kanta Malhotra is an 89 year-old citizen of India. Mrs Malhotra appeared by video link before the Tribunal on 6 July 2022 to give evidence and present arguments. The applicant has been in Australia since 2009. She was represented in relation to the review. The Tribunal is advised that the applicant is legally blind and that she has difficulty understanding proceedings. The Tribunal agreed to receive oral evidence from the applicant’s son, the sponsor Vikram Malhotra, on behalf of the applicant and to allow him to assist his mother whenever she wished to speak for herself. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. The Tribunal is satisfied that Mrs Malhotra was given every opportunity to understand the proceedings and comment where she wished to do so, and that she acceded to her son giving sworn evidence on her behalf.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Consideration of claims and evidence

6. The visa application was made on the basis that the applicant Chander Kanta Malhotra is the parent of Vikram Malhotra (‘the child’). The evidence before the Tribunal is that the sponsor, Vikram Malhotra, is the child of the applicant.

   Is the applicant the aged parent of settled child?

7. With limited exceptions not relevant to this case, cl 804.221(1) requires that at the time of decision the applicant is an ‘aged parent’ of the child who must be a settled Australian citizen, permanent resident, or eligible New Zealand citizen as defined by reg 1.03. ‘Aged parent’ means a parent who is old enough to be granted an age pension under the Social Security Act 1991. In the present matter, the child is an Australian citizen by 2004 grant. The Tribunal is satisfied that the applicant is the aged parent of a settled Australian citizen and of sufficient age to be granted an age pension, as specified.

8. In the present matter, it is not disputed that the applicant does not meet the requirements of PIC 4005 for the purposes of cl 804.225. On 18 May 2021, the Medical Officer of the Commonwealth found that the applicant did not meet the health requirement in PIC 4005. The Tribunal notes the applicant has since been granted a Visitor (Medical Treatment) (Class UB) (Subclass 602) visa, valid until 22 September 2031.

9. On 4 October 2021 the applicant’s representative wrote to the Tribunal stating that the applicant accepts she will not be able to satisfy PIC 4005 or PIC 4007 in any future permanent visa application. The applicant, through her representative, stated that while the Subclass 602 visa permits her to remain in Australia until 2031, it has no travel rights and she wishes to change this circumstance. She stated it can only be changed by seeking Ministerial intervention and applying for a substituted Subclass 600 Visitor visa, which will have travel rights. The reason this is necessary, she stated, is that she may wish to visit her home country for the last time, due to her advanced age.

10. At the hearing, the applicant, through her representative, confirmed that it is her view that due to her health condition, which is advanced retinitis pigmentosa resulting in visual impairment, as described on 18 May 2021 in an opinion of the Medical Officer of the Commonwealth, she cannot satisfy PIC 4005 and cannot meet cl 804.225 of Schedule 2 of the Regulations on any other basis; and therefore, she cannot meet the requirements for the grant of a permanent visa.

11. The Tribunal accepts the applicant’s claim that she cannot meet the health requirements for a permanent visa because of her health condition.

12. The Tribunal finds the applicant does not meet Public Interest Criterion 4005. Accordingly, the applicant does not satisfy cl 804.225 of Schedule 2 of the Regulations.

    Request for Ministerial Intervention

13. At the hearing, the applicant requested that because of the applicant’s age and need to visit relatives, potentially for the last time, the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351, which gives the Minister a discretion to substitute for a decision of the Tribunal, another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

14. In support of her request, the applicant submits that she is an 89 year-old person, who is widowed and who has been wholly dependent on her family, for cultural reasons in particular on her son, for support since 2009. While her son and his family are in Australia, she also has a daughter in India whose circumstances do not permit her to travel to Australia. Mrs Malhotra states that she not only wants to see her only daughter, but her home in India and the remaining members of her family, so that she may satisfy her need to align towards the end of her life with Indian cultural practice. Her son argues that his mother’s eyesight is unlikely to improve, but she still has some vision, and she does not understand why she cannot visit her family and family home in India in her final years. The applicant’s son, Vikram Malhotra, gave evidence to the effect that his mother has always been enlivened and satisfied by family trips to India each December, accompanied by her son and his family. These were standard in the family until such time as her immigration status changed as a result of the grant of the Medical Treatment visa; that, and the pandemic intervened. Mrs Malhotra and her son submit that depriving his mother in her advanced years of the right to visit her homeland creates compassionate circumstances affecting the psychological state of Mrs Malhotra, and, if these circumstances were not to be recognised, they would result in serious, ongoing and irreversible harm and hardship to the applicant.

15. Mr Malhotra stated that with regard to the family property in India, his mother feels comfortable being there from time to time and does not understand why she cannot go there now, for the first time since she came to Australia, yet the reality is she cannot be unsupervised as she cannot function well enough. The applicant’s representative stated that also, from a cultural point of view in Indian families, the elderly are treated with respect and spend their time engaging with others in the family, and it is difficult to convince Mrs Malhotra, a former school teacher, that she cannot continue to do so at this stage of her life.

16. The parties were understandably cautious in the presence of the applicant in the hearing, in implying that the fact of Mrs Malhotra’s age was that she may not be able to make a trip to India beyond this year, and that a journey home in December of this year may or may not be her only opportunity to see her daughter, home and friends in the foreseeable future. However these sentiments are conveyed to the Tribunal in the letter of October 2021.

17. The Tribunal has considered the applicant’s circumstances and the evidence supporting her request for ministerial intervention. Mrs Malhotra is 89 years of age, and the Tribunal is satisfied that depriving her of a late-life visit to India is of real significance and consequence with implications for the applicant’s longevity and wellbeing, and concludes that there are unique and exceptional circumstances in the matter. The Tribunal considers this is not a strong case for ministerial intervention, given that many applicants face similar obstacles, however the Tribunal considers that on balance, with the applicant’s age weighing heavily, it would be ungracious not to allow the applicant to travel home, where this may be her last opportunity to do so. The Tribunal will recommend that the Minister intervene in this case to allow the applicant to be granted a substituted visa that permits travel.

18. For the above reasons, the Tribunal, having considered the Ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3), refers the matter to the Department.

    decision

19. The Tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.

    Meredith Jackson
    Member

    ATTACHMENT – Legislation Extracts from Migration Act 1958 and Migration Regulations 1994

    1.03      Definitions

    …

    step-child,

    in relation to a parent, means:

    (a)a child of the parent who is not the natural or adopted child of the parent but who is the natural or adopted child of the parent’s current spouse; or

    (b)a child of the parent who is not the natural or adopted child of the parent but:

    (i)who is the natural or adopted child of a former spouse of the parent; and

    (ii)who has not turned 18; and

    (iii)in relation to whom the parent has:

    (A)a residence order in force under the Family Law Act 1975; or

    (B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.