2100359 (Migration)

[2024] AATA 1221

2100359 (Migration) [2024] AATA 1221 (9 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Dai (Karen) Vo (MARN: 0635245)

CASE NUMBER:  2100359

MEMBER:Margie Bourke

DATE:9 May 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 09 May 2024 at 8:19am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – dependent children of an Australian citizen – visa applicant is the sponsor’s biological child – adoption by sponsor’s sister claimed to have ceased – formal adoption under Vietnamese law – money transfers – current application to terminate adoption – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 101.211, 101.221; rr 1.03 - 1.05

CASES

Huynh v MIMA [2006] FCAFC 122

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs on 13 November 2020 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 30 December 2019. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl.101.211 which requires the visa applicant is a dependent child of an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, has not turned 25 at the time of application (or is a dependent child within the meaning of reg 1.03 (b)(ii) which defines dependent child), and is either the child (other than an adopted child) or the stepchild of the Australian citizen, holder of a permanent visa or eligible New Zealand citizen, or was adopted overseas by a person who at the time of adoption was not an Australian citizen, holder of a permanent visa or an eligible New Zealand citizen, but later became an Australian citizen, holder of a permanent visa for an eligible New Zealand citizen.

4. The delegate refused to grant the visa on the basis that cl.101.211 was not met because the delegate found the visa applicant was legally adopted in Vietnam by Vietnamese citizens, and was not the dependent child of an Australian citizen, holder of a permanent visa or an eligible New Zealand citizen, and was not the dependent child therefore of the sponsor (the review applicant).

5. The review applicant appeared before the Tribunal on 6 May 2024 to give evidence and present arguments. The visa applicant, her adoptive parents and another witness attended the hearing by telephone. After the Tribunal discussed issues relevant to the review with the review applicant and his representative, the review applicant and his representative and the witnesses indicated that the visa applicant, her adoptive parents and the other witness did not wish to give evidence in the review. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The interpreter attended the hearing by video connection.

6. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Dependent child criteria

8. The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl 101.221(1) or (2)(a).

9. The review applicant lodged the application on the basis that he is the biological parent of the visa applicant, and that he provides financial support for the visa applicant and that she is aged under 18 years. The review applicant provided documents confirming the visa applicant had been adopted by his sister and his sister’s husband in 2011, and the review applicant provided documents which he claimed were evidence that in Vietnam the visa applicant had been recognised as his biological child and therefore the adoption had ceased and no longer was in effect at the time of application for the visa, and after the application for the visa.

10. The decision of the Department, dated 13 November 2020 concluded that whilst the review applicant was recognised as the visa applicant’s biological parent after the adoption, the legal adoption of the visa applicant was still in effect and therefore the visa applicant was taken to be the adopted child of the review applicant’s sister and her husband, and not the child of the review applicant.

11. Clause 101.211(1) states

    the applicant (a) is a dependent child of (i) an Australian citizen; or (ii) the holder of a permanent visa; or (iii) an eligible New Zealand citizen; and

    (b) subject to subclause (2) , has not turned 25; and

    (c) either: (i) is (A) the child (other than an adopted child); or (B) the stepchild within the meaning of paragraph (b) of the definition of stepchild; of the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph (a) or

    (ii) was adopted overseas by a person who, at the time of adoption, was not an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, but later became an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen.

    (2) paragraph (1)(b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

12. The definition of dependent child in reg 1.03 is as follows: - dependent child, of a person, means the child or stepchild of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who: (a) has not turned 18; or (b) has turned 18 and: (i) is dependent on that person; or (ii) is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

13. The definition of adoption in reg 1.04 is as follows: – (1) a person (in this regulation called the adoptee) is taken to have been adopted by a person (in this regulation called the adopter) if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under: (a) formal adoption arrangements made in accordance with, or recognised under, the law of the State or Territory of Australia relating to the adoption of children; or (b) formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who are recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised; or (c) other arrangements entered into outside Australia that, under subregulation (2) are taken to be in the nature of adoption.

14. Reg 1.04(2) applies to arrangements for adoption made in accordance with usual practice or recognised custom in the culture or cultures of the adoptee and the adopter. This subclause does not apply in this review.

    Information and documents before the Tribunal

15. The review applicant provided information to the Tribunal which included a copy of the Department’s decision record dated 13 November 2020. Information available to the Tribunal included documents which had been submitted to the Department, notably Decision Admitting for Child Adopting (translated) dated [in] July 2011 which recorded that the visa applicant was adopted by [Mr A] and [Ms A]. The decision records that the adopting persons and adopted child have the rights between parents and children as law regulations for marriage and family and that the decision is valid since the date it was signed, and was filed into the book for the adopted child. The decision is signed by the President for the People’s Committee of the [Province A]. The visa applicant, the adopted child, is recorded under the family name of her adopted father, namely [Alias A].

16. I am satisfied based on the decision of adoption, that the visa applicant was legally and formally adopted [in] July 2011 by [Mr A] and [Ms A]. I am satisfied that the Decision Admitting for Child Adopting dated [in] July 2011 is a formal adoption arrangement made in accordance with the law of Vietnam, under which [Mr A] and [Ms A] are recognised by law as the parents of the adoptee (the visa applicant) and the rights of the biological parents of the adoptee (the visa applicant) ceased to be recognised as the parents of the visa applicant. I am satisfied that the visa applicant was formally adopted within the meaning of reg 1.04(1)(b).

17. The review applicant had provided the Department with application and sponsorship forms, and other documents including a translation of the household book of [Mr A] dated 28 March 2018 and translated on 16 March 2019 which records the visa applicant is a child of the householder. I note the other child members of the household do not have an identity card number, and the identity card number of the visa applicant is recorded as ‘cancelled’. I do not give this notation beside the identity card number of the visa applicant any significance in this review. I am satisfied that the visa applicant is recorded as a child of [Mr A] in the household registration dated 28 March 2018 and is recorded as a child member of the household of [Mr A].

18. I am satisfied based on the oral and written information provided to the Tribunal that [Ms A] is the sister of the review applicant. In a translated statement entitled Application for Authentication dated [in] March 2019, [Ms A] declares that the visa applicant was left at her shop as a baby on [a day in] June 2009 by the mother and the review applicant declared he was the father and [Ms A] considered he was the father of the child. [Ms A] further declares in this statement that the review applicant asked her to take care of the child. I am satisfied that the child was left with her aunt, [Ms A], who agreed to take care of the child, (the visa applicant), and believed the child was the daughter of her brother, the review applicant.

19. The review applicant provided an undated statement to the Department addressed to the Australian Consulate-General with the application for the visa, in which he stated that in 2007 he had a relationship with a woman in Vietnam, and then returned to Australia. He declared the child was left with his sister [Ms A], when aged [specified age] and he asked his sister to raise the child on his behalf. In 2011 the review applicant declares he returned to Vietnam and arranged for a DNA test which showed the child was his biological child. He stated despite enquiries he could not contact the mother of the child. The review applicant stated his sister [Ms A] then applied to adopt the child and a birth certificate was arranged to name her [Alias A]. The review applicant stated he returned to Vietnam in 2012 when his mother was ill and passed away, and he commenced procedures to receive his child. The review applicant declared [in] April 2013 the People’s Committee of [Province A] signed a decision accepting him to receive his daughter and he changed her surname to be the same as his surname of [name].

20. The review applicant provided a copy and a translated birth certificate of the visa applicant recording the visa applicant’s name as [Alias A], recording the registration of the birth certificate [in] July 2011, and noting that [in] April 2013 a notation of a “Decision regarding to admit the daughter” of the review applicant and recorded his year of birth and his Australian address. The note also recorded a decision regarding to correct the civil status of the visa applicant changed from [Alias A] to [the applicant’s name variant 1]. The birth certificate was not reissued in the [the review applicant’s surname] or recording the review applicant as her parent in 2013.

21. I have considered the undated statement of the review applicant, and the translated birth certificate of the visa applicant with a notation dated [in] April 2013. I am not satisfied that this notation can be interpreted as a decision that overturns or rescinds the adoption order of [July] 2011. I am not satisfied that this notation amounts to a formalised decision by the Peoples Committee.

22. The review applicant provided a copy and translation of the birth certificate of the visa applicant which records it was registered [in] July 2011, and translated on 16 March 2019, and which records the visa applicant’s name as [the applicant’s name variant 1] and records only one parent, namely her father, the review applicant.

23. The review applicant provided a translated copy of a decision of the People’s Committee of the [Province A] dated [in] April 2013 and translated on 11 April 2019 recording the review applicant is the father of the visa applicant in her adopted name of [Alias A].

24. The Tribunal provided a translated copy of Extracted Register Father-Child Acknowledgement of the People’s Committee of [Province A] Justice Department certifying the register of acknowledgement of the father-child relationship between the review applicant and the visa applicant recorded in her adopted name as [Alias A] dated [in] December 2018, and translated on 16 March 2019.

25. The review applicant provided a translated copy of an Authorisation Letter signed by the review applicant on 15 November 2019, authorising his sister [Ms A] to contact and handle all issues and documents relating to [the applicant’s name variant 1] with authorities in Vietnam.

26. The review applicant provided a copy and translation of the birth certificate of the visa applicant which records it was registered on [a day in] July 2011, and registered [in] July 2020 and records the visa applicant’s name as [the applicant’s name variant 1], and records only one parent, namely her father, the review applicant.

27. The review applicant provided a translation of an Application for Confirmation to confirm that he was accepted by the People’s Committee of [Province A] to take the visa applicant as his biological child and change her name to [the applicant’s name variant 2], and to confirm that her nurturing does not depend on his siblings family but is solely his responsibility. This document is dated [in] November 2020. The Tribunal is satisfied that this is an application made by the review applicant for determination or confirmation, in relation to the status of the visa applicant and not a decision of the People’s Committee.

28. Prior to the hearing the review applicant provided the Tribunal with translated copies of an application for Confirmation of Adoption Termination, made by the applicant [Ms A] dated [in] May 2024 to the People’s Committee of [Town 1] recording that she and her husband had handed over the child to the review applicant who has been fostering the child since he completed legal procedures on [December] 2018. The review applicant also provided a translated petition regarding the Termination of Adoption dated [later in] May 2024 with a request the People’s Court of [District 1], [Province A] resolve the termination of adoption. The review applicant also provided a translated application for temporary residence verification dated [in] May 2024 for the visa applicant to reside temporarily at junior high school for the purposes of her study. I am satisfied that in May 2024 the adoptive parent of the visa applicant had applied for the adoption to be terminated, which is evidence that the adoption was still in place in May 2024. I am also satisfied that in May 2024 the adoptive parent was applying for temporary residence verification on behalf of the visa applicant, which indicates that the Vietnamese authorities recognise the adoptive parent as having parental rights in relation to the visa applicant.

29. I am satisfied based on the identity documents provided in relation to the visa applicant that she was born in [year]. At the time of application, namely 30 December 2019 the visa applicant was aged [age] years. At the time of this decision the visa applicant is aged [age] years. I am satisfied based on her age, and other evidence before the tribunal, that the visa applicant is a child who is not engaged or partnered and is under 18 years of age.

30. I am satisfied based on the written and oral evidence provided by the review applicant that he is the holder of an Australian permanent resident visa. I am satisfied the review applicant was granted a permanent resident visa, namely a subclass 801 partner visa, in 2006. The review applicant stated that he applied for citizenship in 2007, and ‘passed’ the citizenship test, but never attended the ceremony and never received an approval of citizenship letter or a citizenship certificate. I accept the review applicant is not an Australian citizen and does not have documents to establish he is an Australian citizen at the time of application or at the time of this decision.

31. I am satisfied based on the information provided to the Tribunal that the review applicant has provided financial support in the form of money transfers to the review applicant’s sister, [Ms A], over the periods 23 May 2012 to 5 June 2014, and 20 December 2021 to 17 April 2024. I am satisfied that the review applicant has sent funds for the purchase of a laptop for the visa applicant, based on the video provided by the review applicant.

32. I am satisfied based on the information provided to the Tribunal that the visa applicant has resided with her aunt [Ms A], and her uncle by marriage [Mr A] since she was [specified age] old. I am satisfied based on the evidence before me that the review applicant has been usually resident in Australia since before the birth of the child.

    Requirements of the criteria at time of application in cl.101.211

33. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl.101.211(1)(a). ‘Dependent child’ is defined in reg 1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.

34. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

35. At the time of application, the visa applicant must not have turned 25. However, this requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the total or partial loss of bodily or mental functions: cl 101.211(1)(b), (2).

36. At the time of application, the visa applicant must be a child (other than adopted child) or specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one: cl 101.211(1)(c).

    Analysis of the evidence before the Tribunal

1. The review applicant stated to the tribunal that there is a significant difference between the Australian view and the Vietnamese view. The Tribunal discussed with the review applicant and his representative that the criteria required to be met by the visa applicant was set out in Australian legislative requirements, although the tribunal acknowledged that it was legal decisions made in Vietnam that were being assessed in relation to whether they met the Australian legal requirements.

2. The Tribunal discussed with the review applicant that the information he had provided was that the visa applicant had been legally adopted by [Mr A] and [Ms A] [in] July 2011 based on the Decision Admitting for Child Adopting provided to the Department. This decision had recorded that the visa applicant was given the name of her adoptive father, and was known as [Alias A].

3. The Tribunal discussed with the review applicant the further documents that he had provided, including the household book dated 28 March 2018 which records the visa applicant is a member of the household of her adoptive parents and recorded under her adoptive name of [Alias A], the decision of the People’s Committee of  [Province A] Justice Department - the Extracted Register Father-Child acknowledgement which records the visa applicant under her adoptive name of [Alias A] dated [in] December 2018 and the decision of the People’s committee of the [Province A] acknowledging the review applicant is the father of the visa applicant dated [in] April 2013 which also records the visa applicant under her adopted name of [Alias A].

4. The review applicant gave evidence that he had spent five years applying under Vietnamese law for the child to be put under his family name and under his custody and this was recognised in the decision of the People’s Committee of [Province A] Justice Department in 2018. The Tribunal discussed with the review applicant and his representative that the decision he refers to, the Extracted Register Father- Child acknowledgement dated [in] December 2018, records the visa applicant under her adopted name of [Alias A]. The review applicant and his representative indicated there must be another decision that had not been provided to the Tribunal.

5. The Tribunal allowed the review applicant 24 hours to locate this extra document and submit it to the Tribunal. The Tribunal received a submission from the review applicant’s representative the day after the hearing advising that the representative had been unable to find the document the review applicant had been referring to, but the representative had two birth certificates, one referring to the visa applicant has [Alias A] that stated amendments were being made to change her surname in 2013, and a new birth certificate that was finalised [in] July 2020 with the surname of [the review applicant].

6. I am satisfied that the decisions of the People’s Committee of [Province A] in 2013 and the Peoples Committee of the [Province A] Justice Department in 2018 refer to the visa applicant under her adopted name of [Alias A]. I am satisfied that this indicates that the visa applicant was recorded under her adopted name by the People’s Committee in 2013 and 2018.

7. I am satisfied that the visa applicant’s adoptive mother [Ms A] has applied to the Peoples court for the adoption to be terminated [in] May 2024, and this is confirmation that the adoption of the visa applicant is still legal and in existence.

8. I am satisfied that the review applicant is the father of the visa applicant, and has applied for his biological connection to the visa applicant to be recognised by the Peoples Committee of the [Province A] and the [Province A] Justice Department.

9. I am satisfied that this has been recorded in the notes on the birth certificate of the visa applicant dated [in] April 2013 pending a decision, but the name of the visa applicant was not changed in the decision of the Peoples Committee in 2013 or in the birth certificate.

10. The documents provided by the review applicant that record the name of the visa applicant using the review applicant’s [family name], that are documents not initiated by the review applicant (for example applications or letters of the review applicant or his sister) are the two birth certificates translated in 2019 and 2020.

11. The review applicant provided two birth certificates of the visa applicant in the name [the applicant’s name variant 1]; one is translated on 16 March 2019 and records an initial date of registration [in] July 2011. The second birth certificate in the name of [the applicant’s name variant 1] is translated on 27 August 2020 and is recorded as being registered [in] July 2020 with the initial date of registration of the person’s birth certificate recorded as [a day in] July 2011. The second birth certificate records the date of the registration of the different details of the visa applicant.

12. I have considered the difference in these two birth certificates provided in the visa applicant’s name of [the applicant’s name variant 1].  There is a difference in the date of the initial registration, which may just be an error in translation.  The birth certificate that records the change in the details of the visa applicant’s family name and the recording of her recognised parents on the birth certificate as being registered [in] July 2020, cannot be consistent with a birth certificate with the same information being translated 16 months previously. In the circumstances where there are differences in these birth certificates the Tribunal must treat the documents with some caution as reliable evidence of a decision made as to the status of the visa applicant.

13. Further in the absence of any document or decision by the People’s Committee or the People’s Court that directly refers to the adoption of the visa applicant, I am not satisfied that birth certificates can be relied on as evidence that the adoption of the visa applicant by her aunt and her husband has ceased. I am not satisfied that the two birth certificates provided in the visa applicant’s name of [the applicant’s name variant 1] with no other formal decision or document pertaining to the adoption of the visa applicant or her status in relation to her adoptive parents, amount to evidence that the formal adoption arrangement recognising the adoptive parents as the parents of the adoptee has ceased or been replaced by other legally recognised arrangements in relation to the visa applicant.

14. I have considered the documents provided by the review applicant in support of the application for review, which record the visa applicant by her adopted name, which include the two decisions dated 2013 and 2018 recognising that she is the biological child of the review applicant. These documents indicate the visa applicant is recognised as the adopted child of her adoptive parents, although her biological relationship with her father is formally recognised.

15. I am not satisfied that the review applicant has demonstrated that the visa applicant is his child other than his biological child who was adopted by his sister and her husband, and was the adopted child of the review applicant’s sister and her husband at the time of application and at the time of decision. I am satisfied that the adoption of the visa applicant by her aunt and her uncle in law is legal, valid and still in force. I am satisfied that this valid and current adoption order overrides any claim that the review applicant has made to be recognised as the parent of the visa applicant.

16. I discussed with the review applicant that the tribunal must take a strict approach in the interpretation of legislation and legal orders in relation to children being assessed for visas to travel to another country. The Tribunal notes that the visa applicant has lived in the household of her adopted parents since she was [specified age] old. The documentary evidence before the Tribunal indicates that the visa applicant is a member of her adoptive parents’ household. The visa applicant has not resided with the review applicant and is now [age] years of age. The Tribunal has not received any clear legislative order or formal decision that the adoptive parents and the visa applicant have waived their adoptive relationship rights or had their adoptive parent-child rights removed. The Tribunal cannot accept oral submissions that it should interpret decisions made by the People’s Committee in another country that do not specifically remove, invalidate or even refer to an adoption decision, as overriding an adoption order made in 2011. The Tribunal is satisfied that the adoption of the visa applicant by [Mr A] and [Ms A] has not ceased, and they are the legal and recognised parents of the visa applicant.

17. I have considered that the review applicant has provided evidence that there is an application made for the adoption of the visa applicant to be terminated. I am satisfied that the adoption of the visa applicant by her aunt and her husband is still in existence based on this evidence. I have considered the evidence that this application has been made to satisfy the Australian legislative requirements. I have considered the oral evidence that the Vietnamese view or requirements in relation to adoption may differ to the Australian legislative requirements. In circumstances where the adoptive parent has applied for the termination of the adoption agreement, I am satisfied that the adoption of the visa applicant is still in place at the time of this decision. I am satisfied that the recognised parents of the visa applicant at the time of application and at the time of this decision are [Mr A] and [Ms A].

18. For all these reasons the Tribunal is not satisfied that the visa applicant is the child of the review applicant within the meaning of cl.101.211(1)(c)(i)(A).

19. There is no evidence that the visa applicant is the stepchild of the review applicant within the meaning of cl.101.211(1)(c)(i)(B).

20. There is no evidence that the visa applicant is the adopted child of the review applicant within the meaning of cl.101.211(1)(c)(ii).

21. For these reasons the Tribunal finds that the visa applicant does not meet the requirements of cl.101.211(1)(c).

22. Therefore the Tribunal finds the visa applicant does not meet the time of application criteria in cl.101.211.

23. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

24. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Margie Bourke
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     Definitions

    …

    dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:

    (a)has not turned 18; or

    (b)has turned 18 and:

    (i)is dependent on that person; or

    (ii)is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.

    1.05A Dependent

    (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.

    …