1420002 (Migration)

1420002 (Migration) [2015] AATA 3343 (10 September 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Sima Sabir
VISA APPLICANT:  Ms Sabiha Mohammed Sharif
CASE NUMBER:  1420002
DIBP REFERENCE(S):  2013/002816
MEMBER:Sue Raymond
DATE:10 September 2015
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.
Statement made on 10 September 2015 at 2:58pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The review applicant lives in Australia and wants to sponsor her mother, the visa applicant, to come and reside permanently in Australia. Her mother currently lives in Iraq.
The visa applicant applied for an Other Family (Migrant) (Class BO) visa on 25 November 2013. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer). In the present case, the visa applicant is seeking to satisfy the criteria for the grant of a Subclass 114 visa which requires the primary visa applicant to be the aged dependent relative of an Australian citizen, permanent resident or an eligible New Zealand citizen. The criteria for a Subclass 114 visa are set out in Part 114 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.114.211.
The delegate refused to grant the visa on 27 October 2014 on the basis that cl.114.211 was not met because although the delegate accepted that the sponsor may provide some level of financial support to the applicant, the delegate did not find that the applicant was wholly or substantially reliant on the sponsor, as the financial support is shared amongst the applicant’s dependants in Australia and Iraq.
The review applicant appeared before the Tribunal on 7 August 2015 to give evidence and present arguments. The Tribunal also received oral evidence via telephone conference from Ms Sabiha Sharif in Iraq. The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish (Sorani) and English languages. The review applicant was represented in relation to the review by her registered migration agent, who also attended the hearing.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa application was made on the basis that the visa applicant is the aged dependent of Mrs Sima Sabir, the review applicant, who the visa applicant claims is her 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).
In this case Sima Sabir is an Australian citizen, her citizenship having been conferred in July 2003. She is the visa applicant’s mother.
Is the visa applicant an aged dependent relative of an Australian relative?
To be granted a Subclass 114 visa the visa applicant must be a ‘aged dependent relative’ of an Australian citizen, …(the Australian relative) at the time of application, and continue to be one at the time of decision: cl.114.211 and cl.114.221. ‘Aged dependent relative’ is defined in r.1.03 of the Regulations.
Defined terms
‘Aged dependent relative’ is defined in r.1.03 of the Regulations as follows:
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 these purposes, ‘dependent’ is relevantly defined in r.1.05A(1) as follows:
1.05A (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.
(2)….
The Tribunal notes the two different expressions in the definitions of ‘aged dependent relative’ and the definition of ‘dependent’. The former refers to dependence for a "reasonable period" and the latter refers to reliance for a “substantial period”. 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].
The Tribunal notes and adopts the following passage from the decision of Huang:
‘The clear purpose of the regulations is to ensure that the nominator [sponsor] has a genuine responsibility to support the applicant and has been doing so for long enough prior to the application to demonstrate that the alleged relationship of dependence is real and enduring.’[1]
[1] Huang v Minister for Immigration & Anor [2007] FMCA 720 at para 37
The Tribunal also notes that a reasonable period need not be a lengthy one and that the individual circumstances of the case will affect what amounts to a reasonable period.[2]
[2] Huang v Minister for Immigration & Anor [2007] FMCA 720 at para 44
The term ‘reasonable period’ in the definition of ‘aged dependent relative’ is not refined in the Act or Regulations. Department Policy is set out in PAM3[3] and relevantly states:
5.4 Period of dependency
To be an aged dependent relative the person must have been dependent on the Australian relative for a reasonable period and still be dependent on that relative….
'Reasonable period' (of dependency) is not defined in migration law. Under policy specific to this provision, a reasonable period is taken to be 3 years.
It is always open for officers to decide that dependency has existed for a 'reasonable period', being less than three years, if otherwise satisfied that the applicant has received ongoing support from the Australian relative (consistent with the policy above on dependency).
[3] Division1.2; Reg 1.03 ‘aged dependent relative’ at 5.4 Period of Dependency-as at1 September 2015
The Tribunal refers to the decision of Zeng[4] and notes that the question of substantial dependence will require consideration of at least four factors, namely:
“(a) the nature of the person’s needs (within the meaning of the regulations);
(b) the extent to which those needs are being met by the person from their own resources;
(c) the extent to which the needs are being met by the nominator; and
(d) whether the nominator has an obligation (and the extent of the obligation) to meet those needs having regard to the nominator’s relationship with the applicant.”
[4] Zeng v Minister for Immigration [2005] FMCA 546 at [11]
The definition of ‘dependent’ requires that the person has been wholly or substantially reliant upon the other person for financial support in relation to their basic needs. The term ‘substantially reliant’ involves a concept of predominance and whether the applicant was predominantly or ‘primarily, essentially or in the main’ dependent on the other person.[5]
[5] Huang at [26]
The Tribunal notes that following the Full Federal Court decision of Huynh[6] the proper construction of ‘dependent’ under the definition in r.1.05A does not carry any implication of the notion of necessity or the lack of choice. Therefore, subject to the other requirements of the regulation, there is no need to prove more than reliance in fact.
[6] Huynh v Minister for Immigration & Multi cultural Affairs [2006] FCAFC 122
The Tribunal notes that a person may be dependent upon another, so long as that person has a need for support. This is notwithstanding the fact that the need is, for one reason or another, not being satisfied by that other person.[7]
[7] MIMA v Graovac [1999] FCA 1690 at [13]
In Fernandez v MIBP[8] the Court held that the references to ‘another person’ and ‘the other person’ in r.1.05A(1) cannot be construed as capable of including the plural so as to permit an applicant to be wholly or substantially reliant on more than one person for their basic needs. The Court found that r.1.05A manifests a contrary intention in relation to the rule as to number in s.23 of the Acts Interpretation Act 1901, and as such it did not have application to both of the applicant’s nieces.
[8] Fernandez v MIBP [2015] FCCA 1698 (Judge Street, 19 June 2015) at [6] – [7].
In summary, 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.
CONSIDERATION
Background
The following background information is drawn from a statutory declaration of the review applicant which is on the departmental file[9]:
[9] Folios 10 and 11 of the departmental file
The review applicant is the second child of her family. Her family consisted of 10 people, her parents, and eight children.
Her father was married to another woman in 1957 and as a result of that marriage her father and his first wife had eight children. In about 1970 her father married her mother and as a result they have eight children, including the review applicant. The first wife left the review applicant’s father and with two of her daughters (the review applicant’s stepsisters) came to Australia in 2001 and are now Australian citizens.
The review applicant came to Australia in October 2000 and she is now an Australian citizen.
The review applicant’s mother stayed with her father until he passed away on 29 October 2010. Since mid-2010 the review applicant took over the responsibility of looking after her mother, both emotionally and financially. All of her siblings are married and have their own lives and responsibilities. She is the only one who can and will support her mother. On a monthly basis she sends about $250 to her mother for her living expenses, which include food, clothes and accommodation. After her father passed away she went to Iraq and stayed with her mother for about 10 weeks. At the time of the statutory declaration, in November 2013, she indicated she was planning to go to Iraq on 15 November 2013 and stay for about three months. It is difficult for her to travel back and forth to Iraq, as the review applicant has three children to look after in Australia.
In the visa application[10] the visa applicant listed her children and her husband’s children by his first wife. It shows the review applicant, one other daughter and one son in Australia. The review applicant is the eldest of her siblings living in Australia. The application shows that in Iraq there are two daughters and three sons of the visa applicant. The eldest of all the children is a daughter, Amina. She lives in Iraq.
[10] Folio 43 of the departmental file
In oral evidence at the hearing, in relation to the siblings of the review applicant who live in Iraq, the review applicant indicated that Amina is a nurse; her brother, Mohammad, is a teacher, as are her other two brothers in Iraq; Pishtiwan and Shapol. Her sister, Bzhwer, has finished her university course and is working in an office.
Her siblings in Australia, include a sister Kurdistan, who is married and not in paid employment and a brother, Shakawan, who works as a painter. He is married with children.
The review applicant gave evidence that she is not in paid employment and her husband has a building renovation business. They have three children, a son who is 21, a daughter who is 18 and a son who is seven years old.
The main issue in the present case is whether the visa applicant has been dependent on the review applicant for a reasonable period, and remains so dependent. Before the Tribunal addresses that issue it will deal with some non-controversial matters.
On the basis of the material on the departmental file, the oral evidence of both the review applicant and the visa applicant, the Tribunal finds as follows:
·The legal relationship between the review applicant and visa applicant is that of daughter and mother. The review applicant is the biological daughter of the visa applicant.
·The visa applicant was born in approximately July 1947[11].
·Both at the time of the application and at time of decision the visa applicant is not married nor is she is in a defacto relationship. Her husband passed away in October 2010.[12]
[11] Which date appears on her passport at folio 34 of the departmental file and identity card translation at folio 33 of the departmental file
[12] The death certificate translation appearing at folio 28 of the departmental file only contains the name of the deceased as “Othman” but for present purposes the Tribunal accepts that he is the husband of the visa applicant and has passed away.
These factors are not in dispute and based on those findings the Tribunal concludes that the visa applicant is a ‘relative’ as defined in r.1.03 of the Regulations and, at the time of the application, was 66 years old. Different age qualifications apply for men and women and depend upon the date of the applicant’s birth. The Tribunal concludes that the visa applicant was old enough to be granted an age pension under the Social Security Act. Consequently, the Tribunal is satisfied that subsections (a) and (c) of the definition of ‘aged dependent relative’ are satisfied, both at the time of application, and at the time of decision.
The issue of dependency
It is asserted that the visa applicant is widowed and fully dependent on the sponsor, the review applicant. The rest of her children are not willing to support her. The children in Iraq do not have enough funds, and as for the two other children in Australia, the partners of those children do not allow them to support their mother. It is asserted that the review applicant is the sole support.
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).
The visa applicant lives in a room of a house occupied by a husband and wife who are not related to her. The review applicant gave evidence that she is the only one supporting her mother and that none of her siblings provide any money to her mother. She gave evidence that she was the closest one to her mother. In response to a question from the Tribunal as to whether any of the review applicant’s siblings provide their mother with food, she said that they take food when they visit her. She said that she provides her mother with US$250 every month and that the amount of Australian dollars varies as a result of the currency fluctuations. She takes cash to the bank which then arranged the money transfers.
Although there is evidence of land inherited following the death of the visa applicant’s husband, evidence was given to the effect that the land is still there and it has not been sold. The Tribunal accepts that the land has not been sold.
The visa applicant gave evidence that she lived in Sulaymaniyah sharing a house with a woman, her husband and their child. The rent to live in the house is 100,000 dinars (US$84). She pays the rent money to people sharing the house. She gave evidence that she receives $250 a month from her daughter, the review applicant. She gets that money by going to the market. In response to a question as to whether she ever receives money from her other children she indicated she does not and explained that they are renting and have not got money to give her. She indicated an expense 50,000 dinars for electricity. She said that she does not have any savings and in terms of whether she gets money from any other place or source, she indicated once in three months. In terms of food or clothing she said when the children come to visit they bring food. She nominated that that occurs about once a month or once every one and a half months. The visa applicant denied saying that her sons pay the rent to the visa officer.
In terms of the other evidence provided as part of the application process the Tribunal notes that there are the following documents:
·A one page document from the Raiyyan Foreign Exchange dated 30 October 2013 which states “MRS SIMA SABIR SENDING $ 250 USD MONTHLY WITH OUR AGENT TO SABIHA MOHAMMED SHARIF (SULIMANIA-IRAQ) FROM 08/07/2010 UP TO DUE DATE”[13].
·A document and translation entitled ”the Islamic inheritance system” which appears to relate to the visa applicant’s husband passing away and a reference to the beneficiaries of his inheritance as his two wives, including the visa applicant, and his children and a reference to various shares inherited by each of them[14].
·Various identity documentation
·A contract of hire and rent which appears to relate to the rental of a house to a person and his wife for a monthly amount 400,000 dinars for a period of five years from February 2011 until February 2016[15].
[13] Folio 16 of departmental file
[14] Folio 18 of the departmental file
[15] Folio 20 of the Tribunal file
The Tribunal put certain information to the review applicant pursuant to section 359AA of the Act which is summarised below:
·In a record of interview conducted by a visa officer[16] with [the mother of the visa applicant] on 3 September 2014 the officer said the house rent is the equivalent $400US, “from where do you complete the rent and pay for your living expenses”. The answer recorded in the typed notes is “My sons in Iraq pay the rent.”
·In addition, in that same interview –the review applicant’s mother was asked how much are [her] bills. The answer recorded is that, “every 2 months I pay 50000 dinar (35$), for water and electricity I live alone and don’t [consume[17]] much.
·The statement about the 50000 dinars is in contrast to the visa applicant’s evidence that she does not pay more money above the rent. The statement about the sons paying the rent is in contrast to the evidence she gave about that.
[16] Folios 110-113 of the departmental file
[17] Written in the notes as “consummate”
After a break in the hearing the review applicant provided the following response/comments:
She indicated that her mother is 68 years old and when she talked about the 50000 dinars she is just talking. In relation to the comments about her brothers paying the rent, her mother would not want to ‘put down’ her family-that they would not help her-in front of others. The review applicant indicated that the lady who interviewed her mother said that she would not talk to her because she had hearing problems but the review applicant indicated that she does not have hearing problems. She said that her mother does not know anything about the embassy and is very naiive—she does not want to put down the review applicant’s brothers. The review applicant suggested that there was a problem in conducting the interview –she suggested that there was a connection problem with the telephone. The review applicant submitted that there was some confusion with the interview and the answers given.
Conclusion

The Tribunal indicated at the hearing that there was not a lot of material in support of this application but the Tribunal acknowledges that it has heard oral evidence from the review applicant and the visa applicant. The Tribunal observed that with eight children it seems unusual that the review applicant would be the only one providing support—but the Tribunal also observed that the visa applicant acknowledged that rarely others provided support. The Tribunal accepts that there is no legal presumption about children providing support to their parents and ultimately, it is simply a matter of determining whether the visa applicant was at the relevant time, and for a substantial period immediately prior to that time, wholly or substantially reliant on the review applicant for financial support to meet her basic needs for food, clothing and shelter.
The representative made oral submissions at the hearing to the following effect: that the visa applicant is a 68 year old woman who is widowed and fully dependent on the sponsor in Australia. The reality is that the rest of her children are not willing to support her-the ones in Iraq on the basis of a lack of funds, and in Australia the two sibling’s partners are not allowing the support of the visa applicant by their partners, for financial reasons. The representative submitted that the evidence about the utility bills of 50,000 Iraqi dinars is the cost for the whole house and not the amount that is met by the visa applicant for her share.
The Tribunal has regard to the following matters identified in the written submissions of the representative, dated 12 December 2014:
·It is asserted that there are several errors in the statement by the delegate that the amount of $250 per month is not adequate to pay the rent which is “450,000 Iraqi dinars for rent which is equivalent of 400US$”. The representative asserts that amount of the rent is 45,000 dinars and the delegate had made an error in adding an additional zero. The visa applicant had use of only one room in the house plus shared use of kitchen and bathroom and for this she pays approximately $US100.
·The delegate asserts that the sponsor’s siblings in Iraq pay the rent; and this is not what was stated at interview and nor was it the submission made by the representative. The applicant stated that the other children “sometimes help” but this is not with money but with foods-when they visit her, they bring food so that she does not have to use her own food.
·It is asserted by the representative that the delegate made a great deal out of information recorded in error and the applicant indicates that the conversation was only brief and that at no stage was a figure of 450,000 dinars stated.
·The representative submits that the breakdown of money is simple—of the $250 monthly, some $100 is spent on rent, and the rest is spent on food. All of those expenses are met by the sponsor.
·The representative then made an alternative submission that “if the delegate wishes to insist that his figures are correct, and that the siblings pay $400 a month while the Sponsor provided $250 per month, his decision that the applicant is not ‘wholly or substantially dependent’ on the Sponsor would still fly in the face of the decisions by the Courts.” The representative submits that dependency is not solely financial and that the applicant is dependent on her daughter [the Sponsor] for emotional support. It is submitted that the applicant would fail to thrive, and might cease to thrive if it was not for the support of the sponsor.
The Tribunal accepts that the statement made by the visa applicant about the utility bills[18], in the interview conducted by a visa officer, may be related to the utility cost for the whole house and not the visa applicant’s proportion of it. Consequently, it draws no adverse inference from this statement in light of the further explanation provided.
[18] Put to the applicant pursuant to section 359AA of the Act
The Tribunal also notes that some of the words typed in the notes of interview are not correct eg “consummate” is used instead of “consume”. Consequently, the Tribunal accepts that there may be some inaccuracies in the notes of the interview.
The Tribunal does not accept that the relevant definition of “dependent” includes emotional or psychological support. This is because r.1.05A (2) relates to dependent in the context of humanitarian and refugee visas and that provision, in contrast to the provision applicable in this case, specifically refers to “financial, psychological or physical support.”
The Tribunal accepts that any financial support provided by the sponsor is provided to her by her husband who has his own business. The Tribunal notes that this is not necessarily an impediment to the dependency on the sponsor if the relationship is an essential part of the reason for the support[19]. For present purposes, the Tribunal accepts that any support provided was because the spousal relationship is an essential part of the reason for the support.
[19] In Al Naqi v MIAC [2007] FMCA 874,Federal Magistrate Riethmuller commented that ‘on a broad and practical level financial support for a person’s relatives, from their spouse, can be considered support by them if their spousal relationship is an essential or substantial part of the reason that the support is provided.’
In the final analysis, the reason for the Tribunal’s lack of satisfaction about the dependency is an evidentiary one. The Tribunal has taken account of the oral evidence of both the review applicant and the visa applicant. The Tribunal is satisfied that the review applicant provides some financial support to her mother, although the evidence supporting the oral evidence to that effect is the one page Riayyan document which does not set out any detail of the payments. The Tribunal acknowledges that there is a copy of a rental agreement before it, apparently related to premises in Sulaymaniyah, which contains names of unrelated persons as parties to the rental agreement. The lack of any other relevant evidence coupled with the statement in the record of interview with the visa officer about “my sons in Iraq pay the rent” leaves the Tribunal not able to be satisfied that at the relevant time, and for a substantial period immediately prior to that time, the visa applicant was wholly or substantially reliant on the review applicant [emphasis of the Tribunal] for financial support to meet their basic needs for food, clothing and shelter. The Tribunal has considered whether the interview conducted by the visa officer contained any miscommunication about the sons paying the rent, but even if that evidence was not relied upon by the Tribunal, it is simply not satisfied about the issue of dependency on the evidence before it.
For these reasons subparagraph (b) of the definition of ‘aged dependent relative’ is not met at the time of application.
For the reasons set out above, the Tribunal is not satisfied that the applicant is the aged dependent relative of an Australian relative at the time of application for the purposes of cl.114.211.
For the reasons above, the visa applicant does not meet the criteria for a Subclass 114 visa.
In respect of the other visa subclasses, there is no material which would permit a finding that the applicant meets prescribed criteria for those visas.
DECISION
The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.
Sue Raymond
Senior Member

[2015] AATA 3343

10 September 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Reliance

Procedural Fairness