1417120 (Migration)

[2016] AATA 3765

1417120 (Migration) [2016] AATA 3765 (26 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms ANNA JOSEPHINE LEE

CASE NUMBER:  1417120

DIBP REFERENCE(S):  CLF2014/18581

MEMBER:Mary Cameron

DATE:26 April 2016

PLACE OF DECISION:  Melbourne

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 26 April 2016 at 4:56pm

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 1 October 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 6 February 2014. 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.

3. The delegate refused to grant the visa on the basis that cl.838.212 was not met because the delegate was not satisfied that the applicant was the aged dependent relative, as defined, of her sponsor.

4. The applicant appeared before the Tribunal on 3 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Deborah Ann Heppolette who is the applicant’s sponsor, and from Amanda Kerr and Jerome Sui Kien Lee

5. The applicant was represented in relation to the review by her registered migration agent. 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 Deborah Ann Heppolette, who the applicant claims is their relative. Relative is also defined in r.1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or niece or nephew (or their step equivalents).

8. In this case Deborah Ann Heppolette is an Australian permanent resident (a copy her passport of the Republic of Singapore containing her residence visa is contained on the Departmental file, f.35) and is the applicant’s daughter.

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

9. To be granted a Subclass 838 visa the applicant must be an ‘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.

10. 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.

11. The applicant has provided Certificate of Extract from the Register of Births (Singapore) (Department file, f.48) naming Deborah Anne Heppolette as her daughter. 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?

12. The applicant’s evidence is that she is divorced from her former husband Harvey Roystein Heppolette, and remains single. She has provided a copy of a Decree Nisi Absolute issued by the High Court of Singapore dated 4 March 1995. The Tribunal accepts that the applicant does not have a spouse or de-facto partner. 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?

13. 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).

14. 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].

15. The applicant’s evidence in the present case is that she was born in Singapore in 1948, was married in 1972 and divorced in 1995. She has two adult children, her daughter Deborah Heppolette and a son Russell Heppolette, born in 1972. Her son is married and resides in Singapore. She has two brothers and four sisters. Her siblings live in Singapore except for one sister who lives in Sydney.

16. According to the applicant, at the time of the visa application in February 2014 she was living in Northcote, Victoria with her daughter. She was the holder of a visitor visa, and had been coming and going between Australia and Singapore. She continues to live with her daughter in Northcote, and when she is in Singapore she stays with her son.

17. The applicant agreed with the Tribunal that she used to own a property in Singapore, which was sold in 2013. She and her daughter owned that property jointly and her daughter helped her to pay it off after the applicant retired from work in 2003. The property was held in both their names. Both of them received a proportion of the money from the sale of the property for about $400,000.00 but the applicant owed $66,000.00 on her mortgage which had to be repaid and she also had to repay her superannuation fund money that she had borrowed from the fund. In all, she and her daughter between them received AUS $200,000.00 ($100,000.00 each) in profit from the sale of the property. That money was deposited into the applicant’s bank account in Singapore and then transferred to her daughter’s bank account in Australia.

18. The Tribunal asked the applicant how that money has been utilised, and she gave evidence that some of it funded her relocation from Singapore to Australia, and she and her daughter had to move into a bigger place, and they used more of the money to pay rent and utilities and for furniture.

19. The Tribunal asked the applicant about her working life in Singapore. She told the Tribunal that she worked as a secretary in Singapore but retired at the age of 55 which is retirement age in Singapore. She was already divorced at that time. She has received no money from her former husband. She has a superannuation fund from which she receives a very small pension of $160.00 Singapore dollars a month. She has provided records of her pension payments. The Tribunal asked the applicant whether this pension had ever been sufficient to cover her basic needs for food, clothing and shelter. She stated that it had not and that she has relied on her daughter since she retired from work in 2003. She retired with almost no savings, and has no investments, and since her retirement her daughter has supported her in the sum of AUS$400.00 or $500.00 a month which she transferred to her bank account in Singapore before she relocated to Australia. She now lives wither daughter who provides her with all of her basic needs as well as a financial allowance which she transfers into her bank account in Australia.

20. The applicant told the Tribunal that she has no other source of income (other than her pension) than her daughter.

21. The Tribunal noted the observations of the delegate in the primary decision record (a copy of which the applicant provided to the Tribunal) that there is no documentary evidence of deposits of money from her daughter into the applicant’s bank account. The applicant handed up a statement of account of her bank account with the Overseas Chinese Banking Corporation (OCBC) Bank in Singapore for the period December 2010 to December 2013, in which she has highlighted monthly deposits, each of several hundred dollars, in the nature of transfers from her daughter during that period. She also handed up evidence of her pension from the Central Provident Fund Board for the period January 2011 to June 2014 indicating that has received sums ranging from $146.26 to $148.08 on a monthly basis during that period. She has given evidence that the pension has increased recently by a very small amount to around $160.00 a month.

22. In addition the applicant has provided the Tribunal with records of Deborah Heppolette’s Westpac Banking Corporation records for the period from December 2008 to January 2014 recording regular withdrawals recorded as payments to “Mum and Su” during that period. They also record payments some to “Mum, Russell and Dad”. The Tribunal queried the applicant as to how much of these financial transfers were for the applicant’s benefit rather than the benefit of other family members.

23. The applicant responded that Su is her brother and Russell is her son, and that the sponsor has very occasionally helped them financially, but that the significant bulk of the money sent from her daughter was for the applicant to run her household, and that the reference to other family members was because her brother Su, and more particularly her son Russell, sometime relied on the applicant for support as they are both of limited financial means.

24. The sponsor Deborah Heppolette provided detailed oral evidence consistent with that of the applicant. She told the Tribunal that she and her mother sold the apartment in Singapore which they jointly owned in 2013. In November that year the applicant came to Australia as a visitor and they lodged the application for the visa the subject of review. The sponsor told the Tribunal that the apartment was sold for about $400,000.00 and her mother had to repay  the mortgage and also $165,000.00 to her superannuation fund. They received a profit of about $200,000.00 between them which was deposited into their joint bank account in Singapore and then transferred to Ms Heppolette’s bank account in Australia.

25. The Tribunal noted that there is no record of this deposit in the bank records provided. The witness stated that had been paid into a Commonwealth Bank account which she held at that time, whereas the records provided are from her Westpac account which she used to support her mother. The sponsor told the Tribunal that she had used the money she received from the sale of the apartment in Singapore to start a business in order to support her mother.

26. The sponsor gave evidence that her mother retired without savings, in part because she had supported the sponsor to go to university which she completed in 2001. She agreed that the applicant receives a pension of about $160.00 Singapore dollars a month which she will receive for life.

27. Ms Heppolette gave evidence that she commenced financially supporting her mother in 2008 when she returned to Australia after a period working overseas. She has transferred money to her on a monthly basis while her mother was in Singapore and continues to provide her with financial support by bank transfer on a regular basis, and by sharing a home with her in Australia.

28. The Tribunal questioned the sponsor about the financial transfers which name “Russell” and “Su” as recipients. She stated that Su is her mother’s brother who lived with her mother for a while in Singapore, and Russell is her brother to whom she has only occasionally sent money. She stated that her brother does struggle financially and she has paid for him to undertake some short courses of study but this has not been a regular occurrence such as her financial support of their mother is. The sponsor stated that she also used to send money to her father on a regular basis, but no longer does so, and the last time she gave him any money was in 2013.

29. In response to the Tribunal’s question as to whether her mother has had any other source of financial support the witness explained that when she (the sponsor) was married her then husband had given her mother money and had agreed to continue doing so for a period of time after the couple separated. The sponsor told the Tribunal that her father has not provided the applicant with any financial support and her brother has been unable to do so as he has to support his own family and cannot afford to help their mother.

30. In addition to the documentary evidence set out in the preceding paragraphs, the Tribunal has been provided with a significant volume of documentary evidence that was not before the delegate at the time of the primary decision. This includes records of the applicant’s and her daughter’s Tenant Trust Ledger Report for their home in Heidelberg West, Victoria; records from the Housing and Development Board of Singapore regarding of the sale of the parties’ flat in Jurong West, Singapore in 2013 indicating that they received a sum of $236,694.00 (Singapore dollars) from the sale in October 2013; evidence of the divorce of Deborah Heppolette from her former husband in September 2013; and payslips and detailed tax return records of Deborah Heppolette for the period 2013 to 2015.

31. The witness, Amanda Kerr gave evidence that she has known Deborah Heppolette since they were children and they went to university together and shared a house for a while. The witness was aware at that time that Ms Heppolette was trying to get a job in order to support her mother financially. Her circumstances changed when she went overseas, but after her marriage breakdown Ms Heppolette returned to Australia and tried very hard to get a job with the whole idea being to support her mother and bring her to Australia. The witness was under the clear impression that Ms Heppolette was the only person supporting the applicant financially. She has also understood that this has continued to be the case, and they have spoken about this at length, as she and Ms Heppolette are close friends have assisted one another financially from time to time and know each other’s financial situations.

32. The witness Jerome Sui Kien Lee gave evidence that he was Ms Heppolette’s partner and lived with her for more than four years until the end of their relationship in 2013. They had shared financial arrangements at that time and those arrangements included the financial support of the applicant to whom Ms Heppolette transferred money at least monthly. She also made additional payments when the applicant had particular needs. The witness gave evidence that applicant’s son Russell was unable to help. He gave evidence that the applicant’s brother Su lived with her for a while in Singapore but did not contribute financially. He gave evidence that Ms Heppolette and her father are estranged, and that he had been something of a burden. She had only very occasionally given him a little money when he rang and asked for it.

33. The witness gave evidence that he has known Ms Heppolette since 2008 and can state unequivocally that she has been the person who has supported her mother since he has known her. He stated that Ms Heppolette has remained resilient while her family has fragmented, and she has dealt with significant hardship in order to look after her mother.

34. The Tribunal found the parties at hearing to be credible and consistent in their evidence, and accepts as wholly plausible that the applicant has been financially supported by the sponsor since the applicant’s retirement from paid employment in 2003. Based on the parties’ oral evidence and the financial records provided, the Tribunal accepts that money has been transferred to the applicant monthly by her daughter both when the applicant was residing in Singapore and since moving in with her daughter in Australia in 2013.

35. In regard to the financial support provided to the applicant for a period of time by Ms Heppolette’s former husband, the Tribunal has had regard to the view taken by the (then) Federal Magistrates Court in the case of Al Naqi v MIAC [2007] FMCA 874, in which the Court found that “a broad practical judgement” is required in cases where an applicant is reliant on a person who is one of a couple, and that this may require a consideration of the underlying source of the support and the reasons for it. The Tribunal has carefully considered the evidence in the present case and is satisfied that, to the extent that Ms Heppolette’s former husband provided financial support to the applicant, it was for reason of his spousal relationship with Ms Heppolette at the relevant time, and that this financial support may properly be considered to be from Ms Hepplolette herself because the spousal relationship, when it existed, was an essential part of the reason for the support provided.

36. The Tribunal accepts based on the records provided that the applicant receives a pension in the sum of approximately $160.00 (Singapore) per month, and that the applicant does not rely on that source of income, which is less than forty Australian dollars a week, to meet her basic needs for food, clothing and shelter. The Tribunal accepts that she has relied on her daughter Deborah Heppolette for money sufficient to cover her basic needs for food, and clothing and shelter and has done so since 2008.

37. Based on the evidence before it, and in particular the consistent and detailed oral evidence of the parties at hearing, the Tribunal finds that the applicant was at the time of the visa application and for a substantial period immediately before that time wholly or substantially reliant on her daughter Deborah Heppolette for financial support to meet her basic needs for food, clothing and shelter. Her only other source of financial support was and is a small pension, and for the reasons given, the Tribunal finds that her reliance on Deborah Heppolette is greater than her reliance on any other person, or source of support, for financial support to meet her basic needs for food, clothing and shelter.

38. 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?

39. 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.

40. The applicant was born on 18 September 1948 and was sixty seven at the date of application, and was, and is, old enough to be granted an aged pension under the Social Security Act 1991.

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

42. 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.

1. 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

2. 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

   ·cl838.221 of Schedule 2 to the Regulations

   Mary Cameron
   Member