1600917 (Migration)

[2016] AATA 4389

1600917 (Migration) [2016] AATA 4389 (24 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Biyuan Kang

CASE NUMBER:  1600917

DIBP REFERENCE(S):  CLF2015/15085

MEMBER:Kira Raif

DATE:24 August 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 24 August 2016 at 5:51pm

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 7 January 2016 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 is a national of China, born in August 1941. She last entered Australia in January 2015 holding a Visitor visa. The applicant applied for the Class BU visa on 12 March 2015. The delegate refused to grant the visa on the basis that cl.838.212 was not met because the delegate was not satisfied the applicant was an Aged Dependent Relative of an Australian relative. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 4 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, 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.

5. The visa application was made on the basis that the applicant is the aged dependent relative of her son. 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).

6. 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. 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.

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

7. The applicant is sponsored in this application by her son. Notarial certificates provided with the application confirm the relationship between the applicant and the sponsor and the Tribunal is satisfied that the applicant is ‘relative’ of an Australian relative for the purposes of cl.838.212.

8. The applicant provided with her application evidence that her spouse has passed away. The Tribunal is satisfied that the applicant is widowed. She meets subparagraph (a) of the definition of ‘aged dependent relative’. The applicant was born in 1941 and was 73 years of age at the time the application was made. The Tribunal is satisfied she is old enough to be granted an age pension under the Social Security Act 1991. The applicant meets subparagraph (c) of the definition of ‘aged dependent relative’.  The issue before the Tribunal is whether the applicant has been dependent on the sponsor for a reasonable period and remains so dependent, within the meaning of r. 1.05A.

9. In her oral evidence to the Tribunal the applicant stated that she last entered Australia in January 2015 and has not left Australia since that time. She said that in Australia she has been living with her son, who has been fully supporting her. Prior to coming to Australia, she lived in Hunan, China with her daughter for about a year and prior to that, in the US with another daughter.

10. The applicant stated that she initially travelled to the US in 2005 and stayed there for about ten years. She made two further trips in 2013 and 2014. The applicant initially told the Tribunal that she left the US because her daughter lost her job and divorced and had financial difficulties. She repeated these claims in her written submission to the Tribunal. However, in oral evidence to the Tribunal the applicant confirmed that her daughter was able to resume employment at a later date. The applicant said that she did not want to stay in the US because she had language problems and also her church was too far away. She said she did not want to return to the US after her daughter obtained a job. The Tribunal has formed the view that the applicant’s decision to leave the US was not due to any financial constraints, as the applicant claims in her written submissions, but for a variety of other reasons.

11. In her written submissions to the Tribunal the applicant outlined various periods of her residence in Australia and her dependence on the sponsor from 2002. In the Tribunal’s view, that period is far beyond being ‘reasonable’ or ‘substantial’ for the purpose of establishing dependence at the time of application and the Tribunal is not convinced that any period of dependence that existed more than ten years before the application was made is relevant.

12. The applicant’s representative made a number of claims to the Tribunal through written submissions. The representative addressed the other children’s capacity to care for the applicant. The Tribunal considers that evidence unhelpful. The issue before the Tribunal is not anyone’s capacity to provide financial support to the visa applicant, nor their willingness to do so. What the Tribunal must consider is whether in fact the applicant was, and remains, reliant on the sponsor for financial support for her basic needs. It is not necessary to establish the need for such reliance.  The representative refers to the applicant’s poor health and submits that medical costs should be included in considering basic needs. The Tribunal notes that the legislation does not permit consideration of medical expenses as part of the basic needs. Such basic needs are expressly limited to food, shelter and clothing. The representative also refers to a number of other Tribunal decisions. The Tribunal considers such references unhelpful. The Tribunal notes that such decisions are based on the individual facts in each case and those individual circumstances do not necessarily exist in the present application. The Tribunal decisions also have no precedential value.

13. The applicant’s evidence is that since she last entered Australia in January 2015, she had been living with her son and the Tribunal accepts that during the period of her residence in Australia, the applicant has been wholly or substantially financially reliant on the sponsor for her basic needs. However, the period of her residence in Australia, which was two months before the application was made, is not sufficient to cover a reasonable period or a substantial period. That is, the fact that the applicant may have been dependent on her son since her arrival in Australia two months before the visa application was made does not establish her dependence on the son at the time of the application. The Tribunal must also consider the period when the applicant resided in China with her daughter, as the Tribunal considers a substantial period or a reasonable period to be at least 12 months. 

14. The applicant’s evidence to the Tribunal is that she has been living in China with her daughter from February 2014 to January 2015.

15. The applicant’s evidence to the Tribunal is that when she lived with her daughter in the US, her son sent her money. She states that when she returned to China, the sponsor sent her money on a number of occasions and also gave her money when he visited. She claims that other than her pension and the money from the son, she had no other sources of support. However, the applicant also informed the Tribunal that while in China, she lived with her daughter in a place which she sold to the daughter many years ago. The Tribunal finds that while living in China, immediately before travelling to Australia, the applicant lived with her daughter and was fully reliant on her daughter for shelter. The Tribunal acknowledges the applicant’s evidence in her submission to the Tribunal of 23 August 2016 concerning what the rental costs would have been, had the applicant rented accommodation, however, the Tribunal has formed the view that what the legislation requires is the factual assessment of the circumstances as they existed, not of a hypothetical situation. The applicant did not rent accommodation and did not pay to her daughter for accommodation. It is not relevant to consider what she could have done or how much it could have cost. What is relevant is what she did and, to the extent that Departmental policy suggests otherwise, the Tribunal does not consider such policy to be consistent with the legislation.

16. As for food, the applicant’s evidence to the Tribunal is that she sometimes helped her daughter in China and gave her money for food but there is no suggestion that this was a regular occurrence. The applicant provided evidence of receiving a pension and claims that her daughter sometimes withdrew money from her bank account. The Tribunal finds that while living in China, the applicant contributed towards some expenses for the food but it appears that the applicant’s daughter was the primary source of financial support for food.

17. The sponsor’s evidence to the Tribunal is that he had an arrangement with his sister whereby he looked after the sister’s child in Australia and the sister looked after their mother in China. He said that he sent RMB 10,000 on one occasion and $600 on another occasion and he also transferred money on other occasions. The sponsor said that his mother had various daily expenses but could not explain what these expenses were. In her post-hearing submission to the Tribunal dated 23 August 2016 the applicant also refers to the money transfers the sponsor made to her or her daughter while she lived in China and the applicant outlined the arrangements that were put in place whereby the sponsor cared for his nephew while his sister looked after their mother in China. The Tribunal accepts that evidence. The Tribunal accepts that while the applicant lived with her daughter in China, the sponsor had sent funds to the family and also that he looked after the sister’s son in Australia. However, the Tribunal is not satisfied that this arrangement was in place only because the daughter was looking after the applicant. That is, the Tribunal is not satisfied that the daughter’s care for her mother, including the provision of accommodation and food and other daily needs, was dependent on the sponsor’s care for the child. The Tribunal does not accept that the daughter would not have provided support to her mother unless her son was being cared for in Australia.

18. The applicant informed the Tribunal in oral evidence, when asked how she spent the funds she received from her son, that she helped her relatives in the countryside, paid medical bills, medical expenses and for transport. That suggests that even if the applicant relied on her son for her daily expenses, such expenses included many items which are not part of consideration of dependence, for example, medication and supporting family members and transport. Therefore, the fact that the sponsor provided the applicant with funds does not necessarily establish her dependence on her son for basic needs that form the definition of dependence.  

19. Overall, the Tribunal accepts that the sponsor provided financial support to his mother for a substantial period before the application and has been providing the majority or the entirety of such support since the applicant entered Australia. However, the Tribunal also finds that while in China, the applicant relied on her daughter, rather than her son, for accommodation and food. The Tribunal does not accept the claims that this was only possible through the financial support from the sponsor. While such support has been provided, either directly to the applicant and her daughter, or through the care of the daughter’s son in Australia, the Tribunal has formed the view that the daughter would have still offered accommodation to the applicant irrespective of the provision of such support. The Tribunal does not accept that the sponsor’s care for his nephew in Australia was a payment for the daughter taking care of the applicant in China.

20. The Tribunal finds that while in China, the applicant wholly relied on her daughter for shelter and at she relied at least substantially on her daughter for food. The Tribunal is not satisfied that the applicant’s reliance on her son for shelter and food while in China was greater than the applicant’s reliance on her daughter, even though the Tribunal is prepared to accept that some of the son’s funds may have gone towards these expenses. The Tribunal accepts that while living with her daughter, the applicant contributed to her expenses for food through the money she received from the sponsor, the Tribunal finds that the applicant’s reliance on her daughter for food was greater than her reliance on her son. The Tribunal is also mindful that the applicant’s pension could have contributed towards the food and the applicant has not satisfied the Tribunal that her reliance on her son for financial support for food was greater than her reliance on her son. The Tribunal acknowledges, in particular, the applicant’s evidence that the money she received from the sponsor covered other expenses such as medication and transport, so that while the Tribunal accepts that the son provided substantial financial assistance to his mother while she lived in China, that is not sufficient to establish the mother’s dependence on him for the specific basic needs of food, shelter and clothing, as the legislation requires.

21. It follows that the Tribunal is not satisfied that in the 12 months before the application was made, the applicant was wholly or substantially reliant on her son for financial support to meet her basic needs for food, shelter and clothing and that such reliance on her son was greater than the applicant’s reliance on any other person or source of support for financial support to meet her basic needs.

22. The applicant argues, in her submission to the Tribunal of 23 August 2016, that in the circumstances of this case, a reasonable period should be extended to a period from 2004, when the applicant developed dependence on her son, and not a 12 months period. The Tribunal does not consider that a period of 11 years is a reasonable or substantial period contemplated by the legislation simply because the applicant believes this would benefit her circumstances. The Tribunal does not consider this was the intention of Parliament to extend a reasonable or a substantial period to such a lengthy one. In any case, the Tribunal is not satisfied, for the reasons stated above, that the applicant has been dependent on the sponsor for 12 months before the application was made and even if she was so dependent in 2004 or subsequently (the Tribunal makes no findings on the issue), that would not be sufficient because the Tribunal has formed the view that she ceased to be so dependence since she has been living with her daughter in China.

23. The applicant has not presented evidence of being incapacitated for work due to the total or partial loss of her bodily or mental functions. The Tribunal is not satisfied the applicant was, at the time of the application, at least, wholly or substantially reliant on her son for financial support because of such incapacity.

24. The Tribunal is not satisfied that at the time of the application, the applicant was dependent on the sponsor within the meaning of r. 1.05A. The Tribunal is not satisfied that she is an Aged Dependent Relative of the sponsor. She does not meet cl. 838.212.

25. The applicant referred the Tribunal to her preference to live in Australia and the network of friends she has established in Australia. The representative also claims that it is not possible for the applicant to live elsewhere. The Tribunal acknowledges that evidence but these are not matters that the Tribunal is able to have regard to. Having found that the applicant does not meet cl. 838.212, the Tribunal has no discretion to recommend that the visa be granted.

26. The applicant’s evidence to the Tribunal is that one of her daughters lives in the US and one daughter lives in China. The Tribunal finds that the applicant has near relatives and is not a remaining relative of the sponsor. The applicant does not claim to be a Carer and has not presented the relevant Carer Certificate. The Tribunal is not satisfied she meets the requirements for the grant of a Carer visa.

    Conclusion

27. For the reasons above, the Tribunal finds that the applicant does not meet the criteria for a Subclass 838 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

    DECISION

28. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Kira Raif
    Senior Member