Shariff (Migration) - [2021] AATA 4184

Shariff (Migration) [2021] AATA 4184 (18 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Abdul Shariff
CASE NUMBER:  1824132
HOME AFFAIRS REFERENCE(S):          CLF2017/22198
MEMBER:Andrew McLean Williams
DATE:18 August 2021
PLACE OF DECISION:  Brisbane
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:
·clauses 838.212 and 838.221 of Schedule 2 to the Regulations.

Statement made on 18 August 2021 at 2:39pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – ‘aged dependent relative’ – biological son – ‘wholly or substantially reliant’ – age pension age – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A; Schedule 2, cls 838.212, 838.221
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 17 August 2018 refusing 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 15 March 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, the primary criteria to be met include cl 838.212, and cl. 838.221.
The Delegate refused to grant the visa on the basis that cl 838.212 was not met because the Delegate could not be satisfied that the evidence available at that time sufficiently demonstrated that the Applicant was ‘wholly or substantially reliant’ on his son and sponsor in Australia, Mr Afzal Shariff.
The applicant appeared before the Tribunal on 14 July 2021. The Tribunal also received oral evidence from Mr Afzal Shariff, and from his wife, Mrs Pratibha Shariff.
The applicant was represented in relation to the review by his registered migration agent Mukesh Chand (MARN 0962241). The representative attended the Tribunal hearing by telephone.
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 Mr Afzal Shariff 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…

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 Shariff (Migration)

Details

AGLC: Shariff (Migration) [2021] AATA 4184
Case: [2021] AATA 4184
Decision Date: 18 August 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 this visa on the basis that they were the aged dependent relative of Mr Afzal Shariff, an Australian citizen and the applicant's biological son. The decision under review was made by the Migration Review Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the definition of an 'aged dependent relative' as defined in regulation 1.03 of the Migration Regulations 1994. This required the Tribunal to determine if the applicant was a 'relative' of an Australian citizen, if they had no spouse or de facto partner, if they had been dependent on the Australian relative for a reasonable period and remained so dependent, and if they were of an age to be granted an aged pension. The Tribunal also had to consider the definition of 'dependent' under regulation 1.05A, which requires the applicant to be wholly or substantially reliant on the Australian relative for financial support for basic needs, and for this reliance to be greater than reliance on any other person or source.

The Tribunal found that the applicant met the criteria of being a 'relative' of an Australian citizen and that the applicant was a widower with no spouse or de facto partner. In relation to dependency, the Tribunal noted that the applicant had retired from the Fiji Civil Service and received a lump sum pension, which was largely used for the education of their children. The Tribunal considered the case law regarding the interpretation of 'dependent' and 'reasonable period', noting that dependency does not imply necessity or lack of choice. However, the provided text does not detail the Tribunal's specific findings on whether the applicant was wholly or substantially reliant on their son for financial support for basic needs, nor does it detail the findings on the applicant's age pension eligibility.

Consequently, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the applicant met the criteria under cl 838.212 and cl 838.221 of Schedule 2 to the Regulations, indicating that further assessment was required on the remaining criteria for the Subclass 838 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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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 of the Regulations.Andrew McLean WilliamsMember

Ratio Decidendi

Legal Principle Established

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 Mr Afzal Shariff 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 Mr Afzal Shariff is the biological son of the Applicant, and is an Australian citizen. 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 is a widower whose wife died many years ago, in 1988. The Applicant has not since remarried, and does not have another spouse or de facto partner. For these reasons subparagraph (a) of the definition of ‘aged dependent relative’ is met both 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]. In this case the Applicant is a citizen of Fiji who worked for many years in the Fiji Civil Service. The Applicant retired from the Fiji Civil Service in 1987 taking his pension entitlements at that time in the form of a lump sum payment. Based on the evidence heard before the Tribunal it would seem that the majority of the Applicant’s pension entitlements were then used by him in order to provide for the education of his now adult children, all of whom now reside in either Australia or New Zealand.