1604037 (Migration)

[2016] AATA 4449

1604037 (Migration) [2016] AATA 4449 (23 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr VAN U NGUYEN

CASE NUMBER:  1604037

DIBP REFERENCE(S):  CLF2015 / 57689

MEMBER:Kira Raif

DATE:23 September 2016

PLACE OF DECISION:  Sydney

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; and

·cl. 838.221 of Schedule 2 to the Regulations.

Statement made on 23 September 2016 at 5:02pm

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 21 March 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 Vietnam, born in 1941. He travelled to Australia in November 2014 holding a Visitor visa. The applicant applied for the Aged Dependent Relative visa on 15 September 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 the aged dependent relative of the Australian relative. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 21 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review. 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 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. 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.

6. 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 arrived in Australia in November 2014. His evidence to the Tribunal is that since his arrival in Australia he has been living with his daughter, the sponsor, who has been fully supporting him. The Tribunal accepts that since the visa applicant arrived in Australia, he has been living with his daughter and that he has been relying on his daughter for all of his basic needs. The Tribunal accepts that since arriving in Australia, the sponsor provided the applicant with accommodation, food and shelter. The Tribunal accepts that for ten and a half months before the application was made, the applicant was wholly reliant on the sponsor for his financial support for his basic needs.

8. As the period of 10.5 months may not be a ‘substantial period’, the Tribunal has also considered the applicant’s dependence prior to his arrival in Australia. There is evidence before the Tribunal that the sponsor had sent regular remittances to Vietnam. The delegate found that such remittances were made primarily to the applicant’s son and there were only few remittances made directly to the applicant. However, that does not necessarily mean that the applicant did not have access to the funds sent in his son’s name. The applicant’s evidence to the delegate and the Tribunal is that the funds sent by the sponsor were used to cover his needs and that applied to the funds sent by the sponsor to his son. It is entirely plausible, in the Tribunal’s view, that the sponsor in Australia, who considered herself to have the obligation and the capacity to provide financial support to her father, would provide such support and the fact that the money was sent in her brother’s name, rather than to the applicant directly, is not inconsistent with the evidence that the funds were used to cover the applicant’s basic needs. 

9. The applicant’s oral evidence to the Tribunal is that he has no pension or superannuation and has no income from the government. He claims he relies on his daughter for financial support. The Tribunal accepts that the visa applicant has no financial support other than the support he received from his children.

10. The applicant informed the Tribunal that he used to live in the countryside until around 2013 when, due to his age, he moved to live with his son. The applicant said the family do not own any property and the son was renting a property. The son’s income was about 3 million Vietnamese Dong (approximately AUD180 per month). The applicant’s evidence is that the sponsor made several transfers to him and his son and evidence of such transfers has been provided. The Tribunal accepts that the sponsor has been providing funds to her father and her brother. Having regard to the evidence of transfers, and the oral evidence concerning the son’s earnings, the Tribunal accepts that the money send by the sponsor was somewhat higher than the income of the son from employment.

11. The applicant gave confused evidence about how his son used the funds. There was evidence of either having a single bank account or two separate accounts, one for the income from employment and one for the transfers from the sponsor. In his post-hearing submission to the Tribunal the applicant explained that the money was not deposited into a bank and that they used the cash. The Tribunal is prepared to accept that evidence.

12. There is little documentary evidence before the Tribunal on how the money was being used for various expenses. For example, the applicant’s expenses include medical costs and his evidence to the Tribunal is that the son’s expenses included the cost of the child’s education. Such expenses cannot form part of consideration of basic needs and there is no evidence to indicate that the income from the son’s employment was used for some expenses while the money from the sponsor was used for the applicant’s basic needs. The Tribunal acknowledges the declaration from the son, dated 23 September 2016, in which he states that he separated the funds in that manner but that is not supported by the documentary evidence. However, the Tribunal accepts that the funds from the two sources were pooled and used proportionately for all expenses, including the applicant’s food, shelter and clothing. Having found that the money sent by the sponsor was greater than the money the applicant’s son received from his employment, it follows that the funds spent on the applicant’s basic needs for food, shelter and clothing which were received from the sponsor would be greater than the funds spent on these basic needs received from the son’s employment. That is, the applicant’s reliance on the sponsor for his basic needs was greater than the applicant’s reliance on his son (and the son’s income from employment).

13. The Tribunal is satisfied that during the period when the visa applicant resided in Australia, he has been wholly reliant on his daughter for his basic needs for food, shelter and clothing. The Tribunal is satisfied that the applicant’s reliance on his daughter is greater than his reliance on any other person or source of support, for financial support to meet the applicant’s basic needs. The Tribunal further finds that since at least 2012, three years before the application was made, the applicant relied on the funds provided by the sponsor, even though such funds were sent to his son and ‘distributed’ by his son and not directly by the sponsor. The Tribunal is satisfied that the applicant relied on such funds to cover his basic needs and such reliance was greater than his reliance on any other source.

14. Overall, the Tribunal is satisfied that the applicant was at the time of the application and for a substantial period immediately prior to that time, wholly or substantially reliant on the sponsor for financial support to meet his basic needs for food, clothing and shelter. The Tribunal is satisfied that the applicant’s reliance on his daughter is greater than any reliance on any other person, or source of support, for financial support to meet his basic needs for food, clothing and shelter. The Tribunal is satisfied that such dependence existed at the time of the application and for a reasonable period prior to the time of the application and that it continues at the time of this decision. The Tribunal is satisfied that subparagraph (b) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.

15. The applicant claims to be a widower. He meets subparagraph (a) of the definition of ‘aged dependent relative’. The applicant was born in 1941 and the Tribunal is satisfied he 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’. 

16. 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.

    Conclusion

17. 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

18. 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; and

    ·            cl. 838.221 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member