1420924 (Migration)

[2016] AATA 3162

1420924 (Migration) [2016] AATA 3162 (2 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Eleonore Hryniw

CASE NUMBER:  1420924

DIBP REFERENCE(S):  CLF2014/76079

MEMBER:Michelle Grau

DATE:2 February 2016

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:

·cl.838.212, 838.213 and cl.838.221 of Schedule 2 to the Regulations.

Statement made on 02 February 2016 at 2:13pm

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 3 December 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 23 May 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 she was not satisfied the applicant was dependant on the sponsor for a reasonable period as defined in r.1.05A(1)(a).

4. The applicant appeared before the Tribunal on 27 January 2016 to give evidence and present arguments. However, the applicant was 92 years old and deaf, so the Tribunal received oral evidence from the sponsor, who is the applicant’s niece, and representative.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant is a 92 year old widow from Germany who has been living with her Australian niece in Australia since March 2013. In May 2014 the applicant applied for an aged dependent relative visa on the basis she is aged and dependent upon the Australian citizen sponsor.

7. 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.

8. The tribunal accepts the applicant is old enough to be granted an aged pension[1].  The tribunal accepts the applicant is a widow as she provided her husband’s death certificate to the Department indicating that he died in 1999.

   [1] A female born before 1 July 1935 is eligible at age 60

9. Relative is 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). Based on the birth [2]certificates provided to the department the tribunal accepts the applicant is the aunt of Dolores Schlosser, who is the Australian citizen sponsor.[3]  Accordingly, the applicant is the ‘relative’ of an Australian relative for the purposes of cl.838.212

   [2]

   [3] Since 2001 according to Australian citizenship certificate

10. For these reasons subparagraph (a) and (c) of the definition of ‘aged dependent relative’ in r.1.03 is met at the time of application and the time of decision.

    Is the applicant dependent on the Australian relative?

11. The relevant issue remains for the Tribunal to consider is whether the applicant has been, and remains, dependent on the review applicant for a reasonable period.

12. The delegate found the applicant was not dependent for basic needs on the sponsor for a substantial period of time because there was no evidence that she relied on financial support for her basic needs prior to her arrival in Australia in March 2013. The delegate also was not satisfied the applicant  was more reliant on the sponsor for her basic needs than any other source as the applicant received  pension income of approximately 935 euros a month and had more than 17000 euro in the bank and there was insufficient evidence to show the applicant relied on financial support from the sponsor.

13. Subparagraph (b) of r.1.03 requires the applicant to be dependent on the sponsor, within the meaning of r. 1.05A, for a reasonable period.

14. 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).

15. 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 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].

16. The definition of dependent requires that the person is, at the time when it is necessary, ‘wholly or substantially reliant’ upon the other person for financial support to meet their basic needs for food, clothing and shelter. The term ‘substantially reliant’ involves a concept of predominance and requires the Tribunal to ask whether the applicant was predominantly or “primarily, essentially or in the main” dependent on the other person.[4]

    Was applicant wholly or substantially reliant on sponsor for financial support to meet basic needs of shelter, food and clothing?

    [4] Huang v MIMA & Anor [2007] FMCA 720 (Cameron FM, 16 May 2007)

17. Credit card statements with markings showing expenditure items by the sponsor in respect of the applicant were provided. This showed pharmacy and grocery items and health insurance payments and furniture. According to the statements on file the sponsor pays for all the applicant ‘s expenses including food, magazines, books, clothing, footwear, health products and private health insurance which came to about $800 a month.

18. At hearing the tribunal asked about the applicant’s basic needs of food, clothing and shelter and the extent to which those needs were being met by the sponsor or the applicant or any other. The sponsor confirmed that since the applicant’s arrival in Australia, she has been providing the applicant’s accommodation, all her food, including treats and things she likes to eat, like chicken wings and clothing and shoes. While she paid for the applicant’s health insurance at first, the applicant’s health insurance is now being paid from the applicant’s pension. If she were to return to Germany, the sponsor would have to continue to financially support the applicant as her pension is not sufficient to cover rent in Germany, let alone food, clothing or the care she would need.

19. The tribunal considers that while the applicant has a pension and savings, the evidence was that the sponsor has been providing all the financial support for food, clothing and shelter. While the documentary evidence, in terms of receipts was not significant, the tribunal accepts this was because the expenses are part of the sponsor’s general household expenses in which the applicant was included.  Further, the tribunal accepts the credit card statements itemise some applicant specific expenses and the tribunal accepts it is the sponsor who pays the bill. The tribunal accepts the sponsor is a credible witness and the tribunal accepts, even though the applicant receives a pension and has savings, she does not use that to pay for her basic needs, but relies on the sponsor.  As referred to above the relevant case law notes the construction of dependent does not carry any implication of the notion of necessity or lack of choice. In this case the fact is despite this income, it is the sponsor who provides the applicant’s accommodation and food and clothing as well as her health expenses.

20. While the applicant receives a pension, the tribunal accepts the applicant has relied on the sponsor for food, clothing and shelter since her arrival in Australia in March 2013. The applicant has lived with the sponsor in the sponsor’s home and the sponsor has provided all of the applicant’s food and clothing and continues to do so.

21. The sponsor said recently in the last month the applicant has insisted on giving some of her pension to the sponsor. The tribunal accepts recently the applicant’s health insurance of $414 a month is being paid out of the applicant’s pension, the tribunal accepts this is a recent arrangement and the applicant is still substantially reliant for financial support for her basis needs of shelter, food and clothing upon the sponsor as the rest of the applicant’s food, clothing and accommodation is paid by the sponsor. Further, the tribunal accepts that if the applicant were to return to Germany, (if that were physically possible) the applicant would be financially dependent upon the sponsor as her pension would not cover the cost of accommodation, which would be 1000 euros, let alone food and clothing.

22. Based on the evidence before it, the Tribunal accepts at the time of application and time of decision the applicant is and was either substantially or wholly reliant upon the sponsor for financial support to meet the applicant’s basic needs.

23. The tribunal accepts the applicant has no children and her brother is in his 80s with medical problems and living in USA. The tribunal accepts the sponsor checked on her aunt (the applicant) daily when she lived in Germany and in 2013 the sponsor brought her to Australia because of concern that she could not manage living on her own and the sponsor had difficulty contacting the applicant, due to the applicant’s hearing loss. The tribunal accepts the applicant receives a pension and has savings, but the evidence clearly shows that the applicant has a much greater reliance on the sponsor and her financial (and physical and emotional) support in providing her basic needs. The tribunal finds the applicant’s reliance on the sponsor is and has been greater than any reliance on any other person or source of support.

24. The Tribunal therefore finds the applicant was dependent upon the sponsor at the time of application and time of decision.

    Reasonable period

25. The definition of ‘aged dependent relative’ also requires that the visa applicant must be dependent on the relative for ‘a reasonable period’ and remain so dependent. ‘Reasonable period’ is not defined in the Regulations. Departmental guidelines (PAM3) interpret a ‘reasonable period’ in this context as being three years, or a lesser period if otherwise satisfied that the applicant has received ongoing support from the Australian relative.[5] 

    [5] PAM3:Div1.2/reg1.03, 5.4.

26. The definition of ‘dependent’ itself requires a person to be substantially reliant on another person for a ‘substantial period’.  How this requirement is reconciled with the requirement in the definition of aged dependent relative that the applicant be dependent for a ‘reasonable period’ was considered in Huang v MIMA.[6]  In that case, the Court noted that the clear purpose of the regulations was to ensure that the sponsor had a genuine opportunity to support the applicant and had been doing so for long enough prior to the application to demonstrate the alleged relationship of dependence was real and enduring.[7] In short, ‘substantial period’ should be understood to be a lengthy period.[8]  The Court in Huang contrasted this with ‘reasonable period’ which it noted, need not be lengthy.  In reconciling these two differing concepts, the Court concluded that r.1.03 definition of ‘aged dependent relative’ with its reference to ‘reasonable period’, was the predominant provision and took precedence over the definition of ‘dependent’ in r.1.05A. The consequence being  that the reference in the definition of ‘dependent’ to ‘substantial period’ was required to be read down to mean a period not more substantial than a reasonable period.[9]

    [6] [2007] FMCA 720 (Cameron FM, 16 May 2007).

    [7] [2007] FMCA 720 (Cameron FM, 16 May 2007) at [37], [43].

    [8] [2007] FMCA 720 (Cameron FM, 16 May 2007) at [43].

    [9] [2007] FMCA 720 (Cameron FM, 16 May 2007) at [47].

27. Given the applicant has been dependent upon the sponsor since her arrival in Australia on March 2013, the tribunal finds at time of decision this is a reasonable period.

28. In considering the period at time of application[10], the tribunal notes the applicant was financially reliant on the sponsor for a year before the application was lodged. The Tribunal accepts that the applicant was substantially reliant on the sponsor for a reasonable period immediately before the application.

    [10] May 2014

29. Further, it was evident that the applicant was also emotionally reliant on the sponsor when in Germany as the sponsor phoned her every day to check on her, and would ask a friend to check on the applicant if unable to contact her. It was evident that the sponsor travelled to Germany to bring her aunt to Australia to take care of her “because she had no-one else to take care of her.”  The tribunal considers the applicant’s reliance upon the sponsor is not contrived or a new arrangement.

30. Therefore the tribunal is satisfied the applicant was at the relevant time and for a substantial period immediately prior to that time, wholly or substantially reliant on the sponsor for financial support to meet her basic needs for food, clothing and shelter; and the applicant’s reliance on the sponsor 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.

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

32. The tribunal is therefore satisfied the applicant was an aged dependent relative within the meaning of r.1.03 the time of application and the time of decision for the purposes of cl. 838.212 and 838.221.

33. The tribunal is also satisfied, based on the birth certificates and bills on the department file that the applicant is sponsored by her niece, an Australian relative who has turned 18 and is a settled Australian citizen and usually resident in Australia. The applicant therefore meets cl.838.213.

34. 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

35. 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, 838.213 and cl. 838.221 of Schedule 2 to the Regulations.

    Michelle Grau
    Member