1511340 (Migration)

[2016] AATA 3497

1511340 (Migration) [2016] AATA 3497 (10 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Thu Ha Vo

VISA APPLICANT:  Ms Thi Anh Vo

CASE NUMBER:  1511340

DIBP REFERENCE(S):  OSF2013/026 817

MEMBER:Kira Raif

DATE:10 March 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 114 (Aged Dependent Relative) visa:

·cl.114.211 of Schedule 2 to the Regulations; and

·cl.114.221 of Schedule 2 to the Regulations.

Statement made on 10 March 2016 at 12:34pm

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 18 June 2015 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Vietnam, born in June 1946. She applied for the visa on 1 February 2013. The delegate refused to grant the visa on the basis that cl.114.211 was not met because the delegate was not satisfied the applicant was an aged dependent relative of the sponsor. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 10 March 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the application was made, 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. To be granted a Subclass 114 visa the visa applicant must be a ‘aged dependent relative’ of an 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.

5. 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.

6. 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).

7. 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.

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

8. The visa applicant provided with her application evidence of her relationship with the sponsor. The Tribunal accepts that the visa applicant is the mother of the sponsor and a ‘relative’ within the meaning of r. 1.03. The visa applicant was born in June 1946 and was 66 years of age at the time the application was made. The Tribunal is satisfied that, at the time of application, the visa applicant was old enough to be granted an age pension under the Social Security Act 1991. The Tribunal is satisfied that the visa applicant meets subparagraphs (a) and (c) of the definition of ‘aged dependent relative’.

9. Subparagraph (b) of that definition requires the applicant to be dependent on the sponsor, within the meaning of r. 1.05A.

10. There is no evidence before the Tribunal to indicate that the visa applicant is, or was at the relevant time, incapacitated for work due to the total or partial loss of her bodily or mental functions. The Tribunal is not satisfied the visa applicant meets subclause 1.05(1)(b) of the definition of ‘dependent’.

11. The delegate considered the visa applicant’s assets and referred to policy which provides that to be dependent, the applicant must show their inability to provide for their own basic needs. In the Tribunal’s view, such as policy is inconstant with the legislation. The fact that the visa applicant may be dependent on more than one person is not fatal to her application. There is nothing in r. 1.05A preventing an applicant from being dependent on more than one person or source of funds. The issue is whether her reliance on the sponsor is greater than any reliance on any other person, or source of support, for financial support. It is a finding of fact for the Tribunal. As the Full Court of the Federal Court stated in Hyunh, the question which the regulations require to be addressed is whether the applicant is, as a matter of fact, relying on the other person for support, rather than needing to rely for support. It is not sufficient to find that the applicant receives income from another daughter or from her assets. Rather, it is necessary to determine whether it is such funds upon which the visa applicant relies, as a matter of fact, to cover her basic needs for food, shelter and clothing.

12. The Tribunal found the review applicant to be a credible witness and her evidence was consistent and reliable. The review applicant claims that the visa applicant lives on the land owned by her sister in a house that was built by the visa applicant with her help. She said the land was bought about 2001 and the sister built a house there and she also sent money to the sister to allow their mother to build a house on the same land. The review applicant said there are no outstanding payments on the house. The Tribunal accepts that evidence and accepts that the place where the visa applicant lives was built with the financial help from the review applicant.

13. In relation to the visa applicant’s assets, the review applicant said that her mother owns two parcels of land. One of these is a small parcel of land which is vacant and not being used. There is no income from it. The second is rented out to others and is being used as a rice farm. The visa applicant receives 4 million dong a year for the rice farm. This is consistent with the information the visa applicant provided in her interview with the delegate and the Tribunal accepts that evidence.

14. The review applicant presented to the Tribunal evidence of several money transfers and the Tribunal accepts that the review applicant has been regularly sending money to her mother. Although the visa applicant has income from the rice farm, the Tribunal is satisfied that the income the visa applicant receives from the review applicant is far greater than the income she receives from the rice farm (equivalent to about $240 a year). The Tribunal is satisfied that the visa applicant’s reliance on the sponsor is far greater than her reliance on the income from her assets, including the rice farm.

15. With respect to help available from other family members, the review applicant confirmed she has two sisters in Vietnam but she states that her two siblings have little contact with the visa applicant. One of her sisters is a single parent and does not have a close relationship with the visa applicant. The second sister has a disability and is not able to help the mother.  The Tribunal is mindful of the visa applicant’s evidence to the delegate that she receives some help from one of her daughter in Vietnam. The review applicant explained to the Tribunal that she used to send money to her sister so that her mother does not feel bad about not being able to get the money from the eldest daughter. The review applicant said her mother does not have a good relationship with her elder daughter and the daughter lives somewhere else but visits her house. The Tribunal accepts that evidence and the Tribunal accepts that even if the visa applicant receives some money from her eldest daughter, that such amounts are minimal and less than the money received from the review applicant.

16. The Tribunal is satisfied that the review applicant has regularly provided financial support to the visa applicant and that such support is being used for the visa applicant’s basic needs for food, shelter and clothing. In particular, the Tribunal accepts the review applicant’s evidence that the house where the visa applicant lives was built with the financial assistance sent by the review applicant. Although the Tribunal acknowledges that the visa applicant receives some income from her assets and she may receive some assistance from another daughter, the Tribunal finds that at best, such income is minimal. The Tribunal also accepts the review applicant’s evidence that the visa applicant has no other income, such as from a pension.

17. The review applicant argues in her written evidence to the Tribunal that due to her mother’s age, the visa applicant needs medication and it is her basic need and she claims the delegate failed to have regard to it. In the Tribunal’s view, that submission fails to have regard to the definition of basic needs, which is limited to food, shelter and clothing. The applicant may well believe that other items constitute basic needs in her circumstances but consideration of such matters is not permitted by the legislation.

18. Having regard to the visa applicant’s income from her assets in Vietnam and the minimal support she may receive from her daughter and from the farm, the Tribunal is satisfied that the visa applicant is, and has been for a substantial period immediately before the time of the application, wholly or substantially reliant on the review applicant for financial support to meet her basic needs for food, clothing and shelter. The Tribunal is satisfied that her reliance on the review applicant is greater than any reliance on any other person, or source of support, for the financial support necessary to meet her basic needs for food, clothing and shelter. The Tribunal is satisfied that the visa applicant was a dependent of the review applicant (within the meaning of r. 1.05A) at the time of the application and that she remains dependent at the time of decision. The Tribunal is satisfied that the visa applicant met paragraph (b) of the definition of the term ‘aged dependent relative’ at the time of application and decision.

19. The Tribunal finds that the visa applicant is an aged dependent relative of the review applicant within the meaning of r. 1.03. As the review applicant is an Australian citizen, the Tribunal is satisfied that the visa applicant satisfies cl. 114.211 and cl. 114.221.

    Conclusion

20. 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 114 visa.

    DECISION

21. The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 114 (Aged Dependent Relative) visa:

    ·cl.114.211 of Schedule 2 to the Regulations; and

    ·cl.114.221 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member