1408915 (Migration)

[2015] AATA 3122

1408915 (Migration) [2015] AATA 3122 (29 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Subramaniam Yogalingam

CASE NUMBER:  1408915

DIBP REFERENCE(S):  CLF2013/307876

MEMBER:Michael Cooke

DATE:29 July 2015

PLACE OF DECISION:  Sydney

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

·cl.838.221 of Schedule 2 to the Regulations

Statement made on 29 July 2015 at 1:16pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 May 2014 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 12 December 2013. 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 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.838.212 of the Regulations.

3. The delegate refused to grant the visa on the basis that cl.838.212 was not met because the delegate found that the applicant was not wholly or substantially reliant on the sponsor for his basic needs.

4. The applicant appeared before the Tribunal on 16 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsoring relative. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

5. The applicant was represented in relation to the review by his registered migration agent, Mr Rasan Selliah. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa application was made on the basis that the applicant is the ‘aged dependent relative’ of Mrs Kalanithi Sresutharsan who the applicant claims is his sponsoring ’relative’. In this case Mrs Kalanithi Sresutharsan is an Australian citizen and is the applicant’s daughter.

   Is the applicant an aged dependent relative of an Australian relative?

8. 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 r.1.03 of the Regulations.

9. Broadly speaking, a person will be an ‘aged dependent relative’ of another if: they are a ‘relative’ within the meaning of r.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.

10. 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?

11. The applicant was 78 years old at time of application and is now 80 years old and was and is a widower (death certificate provided to the Department). For these reasons subparagraph (a) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.

    Is the applicant dependent on the Australian relative?

12. The definition of ‘dependent’ as it applies to this application is set out in r.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: r.1.05A(1).

13. For the purposes of this application, reference to a ‘substantial period’ in r.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 r.1.05A does not carry any implication of the notion of necessity or lack of choice r.1.05A: Huynh v MIMIA (2006) 152 FCR 576 at [43].

    ·The applicant was at the relevant time and for a substantial period immediately prior to that time, wholly or substantially reliant on the other person for financial support to meet their basic needs for food, clothing and shelter;

14. The applicant is a Canadian citizen due to prolonged residency in Canada. He removed himself to his native Sri Lanka in 2010 following the end of the Sri Lankan civil war and is retired. He lost his Canadian pension after 6 months residency in Jaffna, Sri Lanka due to Canadian Government rules about prohibition of pension payments to non-resident citizens. He then attempted to survive on his entitlement to a Sri Lanka pension but as his representative has indicated in his submission - this was insufficient to maintain his basic needs. He then was left to rely substantially on his Australia-resident daughter. He had come to Australia to stay with his daughter and her family on a number of occasions in the first decade of the 21st century for prolonged periods (of total or substantial dependence) and the sponsor also visited him in Canada and Sri Lanka on occasion. He made application for the visa (the subject of this review) in 2013 on his most recent stay.

15. The Tribunal accepts his representative’s calculation in his submission and oral evidence that the applicant received the equivalent of AUD200 per month from the Sri Lankan Government by way of pension. He effectively required AUD416 for his basic needs with the difference being derived from his daughter. He was thus at the relevant time (12 December 2013) and for a substantial period (from 2010) immediately prior to that time, substantially reliant on his daughter for financial support to meet his basic needs for food, clothing and shelter. His daughter remitted the funds by bank or alternatively gave him cash in hand in Sri Lanka when visiting. When staying in Australia with her she paid for everything. Since her arrived in Australia he has stayed with his daughter’s family so he has been effectively wholly or substantially reliant on his daughter for his basic needs since his decision to seek the grant of this visa.

    ·His reliance on that person was greater than any reliance on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter;

16. The Tribunal accepts that the applicant’s reliance on the Sri Lanka pension for financial support to meet his basic needs for food, clothing and shelter was less than on the money remitted to him by his daughter. The applicant has indicated in a submission that he receives no assistance from his Canada-resident sons as he had some issues with acceptance by his daughters-in-law. In fact, when he decided to leave Canada permanently it was due in no small measure to their treatment of him. He said he was living alone following his wife’s demise and feeling so depressed that he willingly forewent his Canadian pension of CAN1200 per month and Canadian standard of living to live in his homeland on reduced means. He then was forced in these circumstances to rely on money sent and given to him by his Australia-based daughter (on visits to Sri Lanka) for a top up of his Sri Lankan pension to meet his basic needs. His daughter at one stage subsidised an expensive cataract operation that alone cost AUD1000 in Sri Lanka. Following his decision to stay and seek the visa (the subject of this review) his reliance on his daughter has increased exponentially.

17. For these reasons subparagraph (b) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.

    Is the applicant old enough to be granted an age pension?

18. To meet the definition of ‘aged dependent relative’ the applicant must be old enough to be granted an aged pension under the Social Security Act 1991. Different age qualifications apply for men and women and depend upon the date of the applicant’s birth. The applicant was born on 20 May 1935.

19. For these reasons subparagraph (c) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.

20. For the reasons set out above, the Tribunal is satisfied that the applicant is the ‘aged dependent relative’ of an Australian ‘relative’ at the time of application and the time of decision for the purposes of cl.838.212 and cl.838.221.

21. 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

22. 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

    · cl.838.221 of Schedule 2 to the Regulations

    Michael Cooke
    Member