Malhotra v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 67
•10 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Malhotra v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 67
File number(s): MLG 1281 of 2016 Judgment of: JUDGE SYMONS Date of judgment: 10 February 2022 Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal –Other Family (Residence) (Class BU) visa – whether applicant “dependent relative” of adult son – whether Tribunal properly applied the statutory criteria – whether Tribunal considered the applicant’s evidence and claims – concept of McKenzie friend - adult son permitted to make submissions on behalf of applicant at hearing– no jurisdictional error – application dismissed. Legislation: Migration Regulations 1994 (Cth), reg.1.03, 1.05A Cases cited: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Nepal v Minister for Immigration and Border Protection (2015) 327 ALR 89; [2015] FCA 366
Vo v Minister for Home Affairs (2019) 269 FCR 566; [2019] FCAFC 108Division: Division 2 General Federal Law Number of paragraphs: 42 Date of last submission/s: 1 February 2022 Date of hearing: 1 February 2022 Place: Melbourne Applicant In person Solicitor for the Respondent The Australian Government Solicitor ORDERS
MLG 1281 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VANTI BAI MALHOTRA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
10 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The application filed on 17 June 2016 is dismissed.
2.The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,650.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS
BACKGROUND AND INTRODUCTION
The applicant seeks review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 26 May 2016. In that decision, the Tribunal affirmed a decision of a delegate of the first respondent (“the Minister”) to refuse to grant the applicant an Other Family (Residence) (Class BU) Aged Dependant Relative (subclass 838) visa (“the visa”). The Minister opposes the application. The Tribunal enters a submitting appearance and has not participated in the proceeding.
The applicant, Ms Malhotra, is an Indian citizen. On 3 November 2014 she made an application for the visa. A migration agent assisted with that application. The sponsor of this application was the applicant’s son, Mr Raj Malhotra, who is an Australian citizen.
On 21 November 2014, the Department of Immigration and Border Protection (as it then was) wrote to the applicant via her representative and made a request for additional information which was identified as including “documented evidence of financial support“ and “questionnaire for aged dependent relative” (CB 128).
On 17 December 2014, the applicant (through her representative) provided a response to the request for information which included the production of various financial documents, including bank statements which recorded a series of international transfers (CB 131).
On 4 February 2015, a delegate of the Minister made a decision to refuse the applicant the visa. The essential reason for that decision was that the delegate was not satisfied that the sponsor (namely, the applicant’s Australian citizen son) had been providing regular financial support to the applicant for her basic needs of food, clothing and shelter so that the applicant did not meet reg 1.05A(1)(a)(i) of the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate was also not satisfied that the applicant was more reliant on the sponsor for her basic needs for food, clothing and shelter, than on any other source including her own income so as to satisfy reg 1.05A(1)(a)(ii). In short, the delegate found that the applicant’s pension income, which she had declared to be in the amount of RS 17,355 (Indian rupee), exceeded her expenses attributable to food, clothing and shelter which the applicant had declared to be in the amount of RS 10,800.
The delegate found that the applicant was unable to satisfy the definition of an “aged dependent relative” as set out in reg 1.03(B) and so did not meet cl 838.212 of Schedule 2 to the Regulations.
On 23 February 2015 the applicant applied to the Tribunal for merits review of the delegate’s decision with the assistance of a registered migration agent.
On 8 March 2016, the Tribunal invited the applicant to attend a hearing.
On 13 May 2016 the applicant’s representative sent the Tribunal a set of documents, including what was described as a “breakdown of monthly expenses for applicant” (CB 247).
On 16 May 2016 a hearing took place before the Tribunal. The applicant and the sponsor attended the hearing. They both gave evidence, with the applicant assisted by an interpreter in the Hindi and English languages. The applicant’s registered migration agent was also in attendance.
On 26 May 2016 the Tribunal made a decision affirming the decision of the delegate not to grant the applicant the visa (CB 254).
THE DECISION OF THE TRIBUNAL
The Tribunal, in its written statement of reasons, found that the applicant was the “relative” of an Australian relative (namely, the sponsor) for the purpose of cl 838.212. The issue then became whether the applicant was “dependent” on the Australian relative (CB 256 [10]-[13]).
The Tribunal next undertook what it described as an assessment of the applicant’s financial circumstances, by reference to reg 1.05A(1).
The Tribunal found first, based on the applicant’s evidence concerning the reason for cessation of employment, that reg 1.05A(1)(b) did not apply and the applicant was required to satisfy reg 1.05A(1)(a).
The Tribunal assessed the applicant’s total income as RS 17,355, having first excluded the applicant’s husband’s pension when calculating her sources of financial support (CB 257 [21]).
The Tribunal noted that the applicant had submitted a breakdown of expenses to the Department in the amount of 35,800 on 17 December 2014 which the Tribunal considered was, with respect to food, clothing and shelter, “within normal limits” (CB 257 [23]).
The Tribunal noted that in her application for review, the applicant had submitted a revised list of expenses in the amount of between RS 38,800 and 84,000. However, as the time of application criteria required an assessment of the applicant’s circumstances at the time she applied for the visa, the Tribunal found that the applicant’s monthly cost of her basic needs for food, clothing and shelter was RS 16,800 (reflecting the December 2014 list of expenses) (CB 258 [26]).
At [28] (CB 259) the Tribunal referred to the applicant’s claim made at hearing that taxi travel was a necessity and that the cost of gifts was an essential cost of living but found that these items (whilst important to the applicant) could not be included in expenses for the purpose of reg 1.05A(1).
The Tribunal also referred to the applicant’s claim that medical costs must be a basic cost and the amount paid by the sponsor for surgery was indicative of his financial support and the applicant’s dependence on him. The Tribunal noted however that medical care is not included in basic needs as defined by reg 1.05A(1) (CB 259 [29]).
The Tribunal was satisfied that the sponsor had provided the applicant with financial support since she had been living in Australia and that he had been generous in his contributions. However, there was no independent evidence before the Tribunal that during the relevant period (which the Tribunal identified as the two years immediately prior to the date of application), the sponsor paid for the applicant’s food, clothing and shelter and that she was dependent upon him to meet these basic costs. The Tribunal in effect found that the applicant was able to meet her monthly expenses using her monthly pension income of RS 17,355.
The Tribunal, having made these findings, was not satisfied that at the time of application, the applicant was wholly or substantially reliant on the sponsor for financial support to meet her basic needs for food, clothing and shelter; nor was the Tribunal satisfied that her reliance on the sponsor was greater than her reliance on any other source. The Tribunal was not satisfied that the applicant was the aged dependent relative of an Australian relative for the purposes of cl 838.212 (CB 261 [40]).
LEGAL FRAMEWORK
To be eligible for the visa the applicant was required to be an “aged dependent relative” of an Australian citizen at the time of her application and continue to be one at the time of the decision (cl 838.212, 838.221 and 838.111 of Schedule 2 to the Regulations).
Specifically, cl 838.212 of Schedule 2 to the Regulations requires:
The applicant is an aged dependent relative of an Australian relative.
An “aged dependent relative” is defined, in reg 1.03 of the Regulations, as:
“aged dependent relative”, in relation to a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means a relative who:
(a) does not have a spouse or de facto partner; and
(b)has been dependent on that person for a reasonable period, and remains so dependent; and
(c) is old enough to be granted an age pension under the Social Security Act 1991.
For the purposes of determining reg 1.03(b), the meaning of “dependent” is found in reg 1.05A(1), which states:
(1)Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a)at the time when it is necessary to establish whether the first person is dependent on the other person:
(i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
(b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person‘s bodily or mental functions.
PROCEEDINGS IN THIS COURT
On 20 June 2016, the applicant filed an application for review of the Tribunal’s decision.
The application contains a single ground of review that alleges that the Tribunal did not provide enough weight to the applicant’s situation and argues that the Tribunal put too much weight on the applicant’s pension income.
The application for review was supported by an affidavit of the applicant which repeated arguments put to the Tribunal, including that the applicant’s pension was not enough to cover her basic requirements for living.
On 6 November 2019, orders were made for the preparation of this matter for final hearing. The applicant was required to file and serve, at least 28 days before the hearing, any amended application with proper particulars of the grounds of application, any supplementary court book and written submissions. The applicant has not filed any material responsive to this order.
The Minister filed a court book on 27 November 2019 and written submissions on 4 August 2020.
When the matter came before me for final hearing at 10.00 am on 1 February 2022, the applicant did not appear. Instead, her son, Mr Raj Malhotra, informed the Court that his mother was located in India and that, due to time differences and her age, she would not be able to participate in the hearing which was being conducted by video-link technology. I stood the matter down until 2.00 pm to better accommodate the time difference between Melbourne and India, and informed Mr Malhotra that if the applicant was not in a position to manage or access the video-link technology then the Court would allow her to appear and participate by phone.
At 2.00 pm the applicant was dialled into the Teams meeting by telephone. Mr Malhotra also appeared and sought the leave of the Court to make submissions on the applicant’s behalf. I indicated that I would first hear from the applicant before making a decision about Mr Malhotra’s application.
I asked the applicant, through an interpreter in the Hindi language, to explain how it was that the Tribunal decision was in error. The applicant told the Court that the Tribunal took into account her expenses but that she disagreed with the assessment on the basis that she was living with her daughter and son-in-law in India but that in her culture, that was looked down upon and she wanted instead to live with her son in Australia.
Mr Creedon, on behalf of the Minister, relied upon his written submissions, which I indicated I had read prior to the hearing. Mr Creedon submitted that although the application of the visa criterion might produce results that appeared harsh, the Tribunal was bound to apply the definition of “basic needs” in reg 1.05A(1)(a), which was limited to food, clothing and shelter, and to make the assessment of financial capacity at the time of application. The Minister submitted that in making the assessment, the Tribunal had regard to the original evidence of expenditure provided by the applicant in December 2014 but also had regard to the updated evidence provided ahead of the Tribunal hearing in May 2016. The Minister submitted that the Tribunal had clearly considered the applicant’s evidence and found that her pension was sufficient to cover her basic needs. This finding was open to it on the materials. The finding was also consistent with the decision of the Full Federal Court in Vo v Minister for Home Affairs [2019] FCAFC 108 at [14]-[20], which emphasised that reg 1.05A(1) requires evidence of a meaningful degree of financial reliance on a person for basic needs, as distinct from simply receiving some assistance from that person
The applicant was given an opportunity to reply to these submissions but told the Court that she didn’t have anything to add apart from repeating her earlier request for a visa. At this point, Mr Malhotra indicated that he maintained his request to be heard on his mother’s application. I told Mr Malhotra that I would give him leave to make a brief submission in support. The Minister did not oppose this course. My decision reflected considerations of the kind that were identified by Justice Edelman in Nepal v Minister for Immigration and Border Protection (2015) 327 ALR 89 at [13]-[16] in which case his Honour permitted a friend of the appellant to make submissions on his behalf in recognition of the extension of the concept of a Mckenzie friend. Here, limits and constraints placed upon the applicant by virtue of her age, her location and her language skills and the knowledge possessed by Mr Malhotra by virtue of his familial relationship with the applicant and his sponsorship of the visa application, made it appropriate that I hear from him.
Mr Malhotra submitted that the Tribunal had failed to consider all of the applicant’s expenses and that while she had “few” expenses at the time of application, these had increased over time, due in part to the applicant’s poor health. The applicant was now totally dependent on her son, including physically and emotionally.
CONSIDERATION
I have had careful regard to the written submissions and what was advanced by each party at the hearing as well as to the material contained in the court book. I find that the decision of the Tribunal is not affected by error and that the application should be dismissed.
The applicant’s complaint is one that cavils with the merits of the Tribunal decision. The applicant complains that the Tribunal preferred the evidence of her pension income rather than considering all of the other aspects of support the applicant’s son had provided to her.
However, that complaint is not borne out on the Tribunal’s decision record which instead reveals that the Tribunal gave careful consideration to the applicant’s claims, the character she sought to ascribe to the various contributions made by her sponsor son, and the documentary material that had been provided to the Tribunal. The Tribunal did not ignore these contributions but simply was not satisfied that they provided evidence of the type of financial dependence that is required under reg 1.05A(1).
The Tribunal found that the original estimate of expenses provided by the applicant more accurately reflected the applicant’s circumstances and preferred that estimate over a later break-down of expenses provided by the applicant. The weight and preference given by the Tribunal to this first estimate was, as the Minister submits, a matter for the Tribunal as part of its fact-finding function: refer NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].
Further, and although the applicant did not raise this as a specific complaint, I am unable to discern any failure on the part of the Tribunal to comply with its obligations of procedural fairness. The Tribunal invited the applicant to a hearing at which she and the sponsor participated, including to give evidence. The Tribunal decision, to the extent it makes reference to that hearing, discloses that the Tribunal identified for the applicant the dispositive issues in the review, which issues, in any case, were in substance the same as those that had been identified in the delegate’s decision.
DISMISSAL
In these circumstances, I am satisfied that the decision of the Tribunal is not affected by jurisdictional error and the application filed on 17 June 2016 should be dismissed with costs.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 10 February 2022
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