Ram v Minister for Immigration
[2016] FCCA 2350
•15 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAM v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2350 |
| Catchwords: MIGRATION – Application for Other Family (Residence) (Class BU) Aged Dependent Relative (subclass 838) visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal failed to consider the applicant’s circumstances immediately prior to the application for a visa – whether the Tribunal correctly considered the meaning of “wholly and substantially reliant” when determining dependency – no jurisdictional error – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth), reg. 1.03, 1.05A(1), cll.838.212, 838.221, 838.111 of Sch.2 |
| Cases cited: Huang v Minister for Immigration & Multicultural Affairs [2007] FMCA 720 Huynh v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 152 FCR 576; [2006] FCAFC 122 Minister for Immigration & Multicultural Affairs v Graovac [1999] FCA 1690 Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 |
| Applicant: | SHAMBHU RAM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2538 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 29 August 2016 |
| Date of Last Submission: | 29 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 15 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Nair |
| Solicitors for the Respondents: | Mr L Leerdam, DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2538 of 2015
| SHAMBHU RAM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India who applied for an Other Family (Residence) (Class BU) Aged Dependent Relative (subclass 838) visa on 9 April 2013.
In order to be granted the visa the applicant had to be an “aged dependent relative” of an Australian citizen, permanent resident or eligible New Zealand citizen at the time of the application and continue to be one at the time of decision: cll.838.212, 838.111 and 838.221 of Sch.2 to the Migration Regulations 1994 (Cth).
“Aged dependent relative” is defined in reg.1.03 of the Regulations:
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.
The applicant is a widower and had turned 65 before making the visa application. The issue then was whether he satisfied sub-par.(b) of the definition of “aged dependent relative”. He claimed that he met that subparagraph because he had been dependent upon his son, Mr Singh, for four years. His son is an Australian citizen.
The definition of “dependent” was set out in reg.1.05A(1) of the Regulations which provided:
(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
...
(Emphasis in original)
On 14 April 2014, a delegate of the Minister made a decision not to grant the applicant a visa and the applicant applied to the Migration Review Tribunal for review of that decision. On 1 July 2015, the functions of the Migration Review Tribunal were assumed by the Administrative Appeals Tribunal.
The applicant attended a hearing conducted by the Tribunal on 14 July 2015 accompanied by his migration agent. The Tribunal made its decision on 21 August 2015 affirming the decision of the delegate.
Tribunal’s decision
The Tribunal first set out the evidence given by the applicant and his son in support of the application. That evidence concerned both the periods prior to the application when the applicant was in India as well as the periods when the applicant had been in Australia. The Tribunal then set out the relevant criteria and definitions of “aged dependent relative” and “dependent”. It accepted that the applicant was a widower and had not re-partnered and was old enough to be granted an Australian Age Pension. The Tribunal then turned to the question of whether the applicant was dependent upon his son.
In this respect, the Tribunal noted that the relevant test for financial dependency included “a substantial period immediately before” the time of the application and that it was appropriate in the circumstances that that period of time was the few years preceding the visa application which included periods of time that the applicant was physically in India. The Tribunal then focused its attention upon the applicant’s financial circumstances in India.
The Tribunal accepted the applicant’s evidence about his circumstances in India and made the following findings:
a)the applicant was employed as a police officer from 1975 until his retirement in May 2006;
b)the applicant jointly owns his house in India with his son, Mr Singh;
c)the applicant currently receives an indexed Indian pension of about Rs.13,000 per month. In 2010 the pension was around Rs.8,500 to Rs.9,000 per month. He also has a fixed term deposit with Rs.100,000 at 8.25% interest.
The Tribunal then made findings concerning the applicant’s outgoings in India before stating:
[30]Mr Ram’s own evidence at the hearing indicates at face value that his annual income (at least more than Rs:100,000 in 2010 including his pension and bank interest) was greater that (sic) his expenditure for food, clothing and shelter in India (about Rs.80,600 per year).
The Tribunal then noted that it had received a submission following the hearing to the effect that the applicant had underestimated his expenses in India. The submission included a schedule indicating that the applicant’s monthly expenses for food, clothing and shelter in 2012 was about Rs.17,815. Included in that list was the cost of “potential half rent” of Rs.3,000, although this was never an actual cost. The Tribunal accepted the revised estimate of expenses but did not include the notional Rs.3,000 in respect of potential rent. The Tribunal’s reasons for excluding that amount was first, that there was no evidence that the applicant’s son would enforce the payment of half the rent, and secondly, that although the property was in joint names, the applicant gave evidence that he had purchased the property with his own financial resources and placed half in his son’s name (Mr Singh) to take into account that he purchased another property for another son with some assistance from Mr Singh.
The Tribunal then recalculated the applicant’s contribution towards his regular outgoings and concluded that his income in 2012 met “at least two thirds of his expenses for food clothing and shelter.” In light of that finding, the Tribunal concluded:
[34]This in turn means that the tribunal is prepared to accept that Mr Singh’s personal income falls short of his expenditure for food, clothing and shelter. Given that Mr Ram has personal income, it follows that he cannot be said to be “wholly” reliant on his sponsor Mr Singh. This in turn leads to the question of whether Mr Ram is “substantially reliant” on Mr Singh.
(Emphasis in original)
The Tribunal then noted that this question required it to ask whether the applicant was predominantly or “primarily, essentially or in the main” dependent on his son. It stated that there was no mathematical formula to determine when the reliance was substantial as opposed to not being substantial and that it was a question of fact and degree. The Tribunal then referred to the decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v Graovac [1999] FCA 1690 (“Graovac”), and stated that “substantially would be met where, for example, in a case where ‘nearly all’ of the funds are provided but not so where half the funds are provided”.
Applying that reasoning to the facts, the Tribunal found that the applicant’s reliance on his son for approximately a third of his expenses for food, clothing and shelter, fell short of the “substantially reliant” test.
Finally, the Tribunal rejected the submission that payment by the applicant of his daughter’s medication and other expenses to enable his daughter to remarry were relevant to the assessment of the basic needs for “food, clothing and shelter”. It found, in any event, that even if those expenses were included it would not have made a difference to the outcome.
For those reasons, the Tribunal concluded that sub-par.(c) of the definition of “aged dependent relative” was not satisfied at the time of the application and so the applicant was not the aged dependent relative of an Australian relative at the time of the application for the purposes of cl.838.212. Accordingly, the Tribunal affirmed the decision of the delegate not to grant the applicant a visa.
Consideration
First ground
There are two grounds in the further amended application. The first is that the Tribunal erred in that it understood the expression “has been for a substantial period immediately before that time” in the definition of “dependent” as providing a separate, additional requirement for determining dependence that can be determined independently of reliance at the time of application. In essence, the argument is that the Tribunal was wrong to consider the issue of dependency by reference to the period in which the applicant was in India rather than by reference to the whole of the period leading up to and including the time of the application.
The applicant’s argument was summarised in his written submissions as follows:
…
The overarching satisfaction that is required by the criterion for the grant, cl.838.212, is dependency at the time of application. Dependency at the time of application is to be evaluated by consideration of all the circumstances at the time of application including all the circumstances in a substantial period immediately before the time of application.
…
There is no support for the applicant’s argument in either the text of the legislation or the authorities on which he relied. Critically, while it is true that the relevant criterion is posed in terms of dependence at the time of the application, it cannot be seen in isolation from the definition of “aged dependent relative” in reg.1.03, which in turn requires consideration of the definition of “dependent” in reg.1.05A.
The question posed by the definition in reg.1.05A is not just whether the applicant was dependent on his son at the time of the application, but also whether he was dependent on him for a substantial period before that time. In light of that, the Tribunal examined the period of 4 years prior to the date of the application.
There was no issue in the proceedings about the use of a 4 year period, nor was there any issue about the potential conflict between the phrase “reasonable period” in reg.1.03 and “substantial period” in reg.1.05A: cf. Huang v Minister for Immigration & Multicultural Affairs [2007] FMCA 720 (“Huang”). In light of that, I will not consider those issues.
The applicant lived in India during that 4 year period but travelled to and stayed in Australia for certain periods. The material before the Tribunal showed the applicant’s travel in the period 2009 to the date of the application in April 2013 was as follows:
Entered Australia
Departed Australia
Period of stay (approximately)
22.1.11
8.12.11
11 months
24.7.12
5.12.12
5 months
15.1.13
9.12.13
11 months
Total: 2 years 3 months
The applicant spent the balance of the period (approximately 1 year and 9 months) in India.
The relevant ordinary meaning of “period” is a length of time. “Substantial” may be ambiguous and lack precision (Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 at 348), but in this context, means lengthy. The purpose of introducing the phrase “for a substantial period” into the definition was to ensure a real and enduring relationship of dependence rather than a contrived relationship: Huynh v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 152 FCR 576 [2006] FCAFC 122 at [42] (Lander and Rares JJ) (“Huynh”) and Huang (Cameron FM as his Honour then was) at [43].
The phrase requires that there be the relevant dependence throughout the period prior to the date of the application. In light of that, it was open to the Tribunal to examine the periods of time during which the applicant was in India in order to determine whether the applicant was dependent on his son “for a substantial period” immediately before the time of the application.
In support of his argument, the applicant relied on the decisions in Huynh and Graovac. Neither of those cases assists him. In Huynh the Full Court decided that the definition of “dependent” in reg.1.05A carried no implication of necessity: [39], [43] (Lander and Rares JJ) and [47] (Besanko J). That is not relevant to the first ground in the application.
In Graovac, the Full Court considered the meaning of the phrase “wholly or substantially dependent” in the definition of “dependent” in reg.1.03 (“means wholly or substantially dependent on another person for financial, psychological or physical support”) as it was prior to the introduction of reg.1.05A in 1999 by the Migration Amendment Regulations 1999 (No. 13). In that context, Branson and Hely JJ said, at [16], that the question of whether a person is dependent on another must be determined in all the relevant circumstances. That approach may be applicable to the current form of the definition; however, it does not support the proposition that, in order to answer the question posed by the definition, it is not permissible to examine dependency during a specific period of time prior to the application.
For those reasons, the first ground is rejected.
Second ground
The second ground is that the Tribunal’s consideration of the applicant’s time in India was affected by four separate errors:
i)first, the Tribunal wrongly approached the question of whether the applicant was wholly or substantially dependent on his son on the basis of necessity;
ii)secondly, the Tribunal wrongly took a mathematical approach;
iii)thirdly, the Tribunal was wrong to exclude from the contribution to the applicant the amount that he might have to pay his son for rent; and
iv)fourthly, the Tribunal was wrong to exclude the amounts paid by the applicant for his daughter from his expenses.
In his written submissions, the applicant in fact identified two errors in respect of the first of these asserted errors. They were, in substance, a combination of the first two errors. The first part impugned the Tribunal’s statement, at [34], that given that the applicant “has personal income, it follows that he cannot be said to be wholly reliant on his sponsor” (emphasis in the original). The applicant argued that this revealed error because it is not the mere receipt of support but the dependence or reliance upon another to provide it that is determinative. Further, he argues, dependence is not to be decided by whether there is a “real need”, a need by necessity rather than a need by choice. Dependence or reliance is to be determined as a question of fact untrammelled by the implication of the notion of necessity.
What the applicant states about the general approach to the question of dependence may be accepted for present purposes. The difficulty is that the Tribunal simply did not do what the applicant suggests. The applicant’s reference to “real need” and “necessity” are taken from Huynh. In Huynh the Tribunal considered whether three children over the age of 18 were dependent on their parents and proceeded on the basis that any need for support must arise from a lack of choice. That approach was not taken by the Tribunal in this case. It addressed the factual issue of whether the applicant was reliant on his son for financial support for his basic needs for food, clothing and shelter. The fact that the applicant had enough income to meet the majority of those basic needs was directly relevant to that issue. The Tribunal did not consider, for instance, whether the applicant had a limited income only out of choice and was, for that reason, not wholly dependent on his son.
The second part of the first error was based on the proposition that the question whether a person is "wholly or substantially dependent" on another, must be determined in the context of the predominance of the person's reliance on the other and is not to be determined in a limited mathematical way. Again, there is no such error in the decision.
The Tribunal recognised that there is “no mathematical formula that determines when the reliance is substantial as opposed to not being substantial” and that it was a question of fact and degree: [36]. Further, having recognised that, and referring to Graovac, the Tribunal then took a non-mathematical approach: [37]. Contrary to the suggestion in the applicant’s submission, the fact that the Tribunal used a numerical term (one third) does not mean that it took a mathematical approach. As the Tribunal noted, the words “substantially reliant” involves a concept of predominance. The Tribunal found that reliance for a third of the basic needs was not predominant. There was nothing legally wrong with either its approach or its conclusion.
The second error is essentially the same as the second part of the first, namely, the mathematical approach, and is rejected for the same reasons.
The third asserted error is that the Tribunal was wrong to proceed on the basis that “a rent waiver by [the applicant’s son] was not a financial contribution” (emphasis in original). The “rent waiver” here refers to the applicant’s submission to the Tribunal, that the fact that his son owned half the house in which the applicant lived in, should be taken into account when determining the support given by the son to the applicant. In particular, it was argued that the Tribunal should take into account the “potential half rent of the property” which the applicant’s son had not charged so far. my son has not charged so far of Rs.3,000. The Tribunal considered that submission and stated:
[31] … Included in the list of expenses for 2012 was the cost of “potential half rent” of Rs.3,000. This amount was never an actual cost. There is no evidence or suggestion that Mr Singh will enforce the payment of this half rent. Although the property is in joint names it is apparent from the evidence that Mr Ram purchased the property (with his own financial resources) and placed half in Mr Singh’s name to take into account that he purchased another property for another son with some assistance from Mr Singh.
…
It is important to recall that the Tribunal was answering a factual question. In considering the “potential half rent” it did not do so as a matter of law, but analysing the material to determine whether the fact of joint ownership indicated some reliance on the son for shelter. In finding that it did not, the critical matters for the Tribunal were that the son had not paid for the house and there was no indication at all that he would ever ask for rent. In light of those two matters it could not be said, without more, that the circumstances compelled the conclusion that there was some reliance in this respect. In other words, the Tribunal’s conclusion was open on the material before it.
The final asserted error is that the Tribunal erred by not taking into account the applicant’s payments of money in respect of his daughter’s medical expenses. The Tribunal considered this issue at [38] of its reasons:
[38]… The submission suggested that this amount be deducted from Mr Ram’s income in the calculation of the dependency test. The tribunal does not accept this proposition. The financial dependency test in r.1.05A(1)(a) does not contemplate the inclusion of additional expenses beyond the basic needs of food, clothing and shelter. Most people have expenses beyond these basic needs of one sort or another. At any rate, the tribunal notes for the sake of argument that even if it did deduct the daughter’s expenses, there would be no change to the decision.
…
It is clear from this passage that the issue of the daughter’s expenses was not material to the Tribunal’s decision. For that reason, even if there were an error involved in the Tribunal’s consideration of it, it would not have amounted to a jurisdictional error.
The second ground is rejected.
Conclusion
There is no jurisdictional error in the Tribunal’s decision and the application must be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 15 September 2016
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