Abdelmalak (Migration)
[2021] AATA 4275
•20 October 2021
Abdelmalak (Migration) [2021] AATA 4275 (20 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Ms Naema Gabrail Yacoub Abdelmalak
CASE NUMBER: 1904543
HOME AFFAIRS REFERENCE(S): CLF2017/10352
MEMBER:Meredith Jackson
DATE:20 October 2021
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 of Schedule 2 to the Regulations.
Statement made on 20 October 2021 at 2:44pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – applicant was and is wholly or substantially reliant on her son for financial support – applicant is the aged dependent relative of an Australian relative at the time of application and the time of decision – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03,1.05, Schedule 2, cls 838.212, 838.221
CASES
Huang v MIMIA [2007] FMCA 720
Huynh v MIMIA (2006) 152 FCR 576
STATEMENT OF DECISION AND REASONS
1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 February 2019 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant applied for the visa on 19 January 2017. 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 (Cth) (the Regulations). Relevantly in 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 the applicant did not meet the requirements of regulation 1.05A(1)(b) at the time of application.
4. The applicant Mrs Naema Gabrail Yacoub Abdelmalak, appeared before the Tribunal by video link on 5 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Hany Ibrahim Faltaous Goworgious, the applicant’s sponsor and son. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
6. The visa applicant is Naema Gabrail Yacoub Abdelmalak, aged 70, a national of Egypt whose application for the visa was made on the basis that she is the aged dependent relative of her sponsor, Hany Ibrahim Faltaous Goworgious, an Australian citizen by grant, whom she claims as her relative. ‘Relative’ is defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or niece or nephew (or their step equivalents). In this case, Mr Goworgious is the applicant’s son. Evidence provided shows Ms Abdelmalak’s husband Ibrahim Faltaous Goworgious died on 13 May 1988 in Egypt.
The delegate’s decision
7. In refusing to grant the visa, the delegate noted that the applicant had not provided supporting evidence for some of her claims, in particular those concerning her personal and financial circumstances in her home country. These claims included that she is not in receipt of the minimum pension in Egypt because she lives overseas; that she previously worked in the banking sector in Egypt; and that none of her three children in Egypt is in a position to provide financial assistance to her. In particular, she had not provided clarifying bank statements from Egypt to reflect payment and cessation of her pension. Further, the delegate found the formal evidence provided that she had been receiving a pension in Egypt since 2006 was at odds with her earlier claim that she had not been in receipt of a pension because she was overseas. The delegate ultimately found she had not provided sufficient evidence to support her claims of financial dependency on her sponsor in the three years before applying for the visa, that is, between 19 January 2014 and 19 January 2017. While the delegate accepted that the applicant was in Australia for the entirety of that period, her residency was not sufficient to establish that she was financially dependent on her son for her basic needs. The delegate accepted that a monthly pension of AUD 370 was unlikely to cover the costs of her basic needs in Australia but considered that her Egyptian bank statements remained relevant to the decision and had not been provided. The delegate found that the applicant did not meet the definition of dependent and did not meet the definition of ‘aged dependent relative’ at the time of application. The visa was refused.
ISSUES AND LAW
8. The issue in the present matter is whether at the time of this decision, the applicant is the aged dependent relative of an Australian citizen, permanent resident or an eligible New Zealand citizen as defined.
Is the applicant an aged dependent relative of an Australian relative?
To be granted a Subclass 838 visa the applicant must be an ‘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 reg 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 reg 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 (Cth). In this case, the applicant is the ‘relative’ of an Australian relative for the purposes of cl 838.212.
Does the applicant have a spouse or de facto partner?
The applicant has provided evidence that her husband died in May 1988 and there is no evidence before the Tribunal that she has remarried. For these reasons subparagraph (a) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.
Is the applicant dependent on the Australian relative?
The definition of ‘dependent’ as it applies to this application is set out in reg 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: reg 1.05A(1).
For the purposes of this application, reference to a ‘substantial period’ in reg 1.05A means a period not more substantial than a ‘reasonable period’: Huang v MIMIA [2007] FMCA 720 at [47]. Further, the proper construction of ‘dependent’ in reg 1.05A does not carry any implication of the notion of necessity or lack of choice reg 1.05A: Huynh v MIMIA (2006) 152 FCR 576 at [43].
In relation to whether the applicant is dependent on their Australian relative within the meaning of reg 1.05A, the Tribunal has considered the applicant was at the relevant time and for a substantial period immediately prior to that time, wholly or substantially reliant on the other person for financial support to meet their basic needs for food, clothing and shelter. In reaching a conclusion, the Tribunal has considered the documentary evidence and is satisfied that the applicant has been resident in Australia for close to 10 years, having arrived on 22 November 2011 on a Tourist (subclass 676) visa, and during that 10 years, she has lived with her son. Departmental records show the applicant has not left Australia since first arriving. The Tribunal has considered the length of the applicant’s stay in Australia and considers that the three years between 19 January 2014 and 19 January 2017 is a substantial period immediately prior to the time of the visa application and therefore is the relevant period for assessment. Accordingly, for the purposes of this decision, the Tribunal has focussed its consideration of the applicant’s dependency on that three year period (relevant period) and has also considered whether the applicant remains dependent at the time of this decision.
Documents provided on review
The applicant made submissions to the Tribunal on review, which include but are not limited to, evidence of regular outlays by her sponsor, including utility bills and pharmacy receipts, medical records and statements of support from health practitioners, travel records, support statements from members of the parties’ Coptic Orthodox Church, Department of Home Affairs receipts, the sponsor’s tax and income records, sponsor’s Commonwealth Bank and ANZ Bank statements, sponsor statements regarding outgoings for food, clothing and shelter, evidentiary photographs, telephone accounts and itemised monthly expenses analysed for their equivalent cost in Egypt. The applicant also provided a copy of the delegate’s decision to the Tribunal. The Tribunal has considered information on Department and Tribunal files, raised all relevant matters with the parties at the hearing and taken their oral evidence into account. The applicant also provided post-hearing submissions and these have been taken into account.
The Tribunal has considered the documentary evidence provided by the sponsor concerning the financial outlays he has made in support of his mother over the relevant period. The Tribunal notes that the applicant shared the same address as her sponsor at the time of application and continued to share several addresses with him in the relevant period. The applicant claims that throughout the period he paid “for everything” and that therefore his mother relies on him to meet her basic needs for food, shelter and clothing, along with other outlays for medications and travel that are not directly relevant to this assessment. The Tribunal accepts that the additional receipts for non-specified items such as medications tend to assist the sponsor’s claim that he “pays for everything” for his mother and the Tribunal accepts that the applicant provides for her basic needs of food, clothing and shelter.
The Tribunal has considered whether the applicant’s reliance on the sponsor is greater than any reliance on any other person, or source of support, for financial support to meet her basic needs for food, clothing and shelter. The Tribunal asked the applicant whether she had additional sources of income and noted that she has not provided at any stage of the application or review process, copies of any banking records in Egypt. The applicant has claimed she was employed in the banking sector in Egypt until the time of her retirement in 2006. At the hearing, the applicant stated that the reason the bank records had not been provided is that she had never known they needed to be. After the Tribunal pointed out that the primary decision states the records had been explicitly sought by the Department prior to the visa refusal, she stated that in Egypt, a banking customer has to apply for bank statements in person. The applicant seemed unaware of the potential to access accounts online and the sponsor stated this was not something his mother would be likely to do. The applicant, through the sponsor, sought additional time to provide bank statements, which the sponsor indicated would need to be sought through the Egyptian Embassy. The Tribunal granted the applicant additional time to provide evidence in support of the applicant’s claims.
In the hearing, when asked whether she had other sources of income, the applicant stated that her only income stream was the retirement pension from bank she worked for. She stated this is paid at EGP 4,700 per month which is approximately AUD 411. After the hearing, on 15 October 2021, the applicant provided bank statements at Central Bank of Egypt Foreign Department for the period July to October 2021. The statement showed that the applicant was receiving a regular credit of EGP 6,178 (approximately AUD 527) per month in that period. The applicant also provided post-hearing, translated details of her National Authority for Social Insurance (NASI) pension. It indicates that the applicant’s pension commenced on 1 August 2006, is paid monthly and that the total entitlement currently, after deductions, provides a net income of EGP 6980 (approximately AUD 595) each month. In an accompanying statement, the sponsor indicated that his mother’s pension had increased yearly, and the records sought indicated it was now paid at the higher amount. The Tribunal asked whether the applicant had at any time since her husband’s death, and at any time since her retirement until the present time, been in receipt of any other pension income, and if so, at what levels of payment. The applicant reiterated that the only income stream she has is her (NASI) pension.
The applicant claimed at the hearing that the pension funds are primarily used to pay expenses related to a home unit she owns in Egypt, which, while it is no longer mortgaged, attracts water and rates and other expenses. She stated that she had arranged for her daughter, who had health issues and very little income, to receive the pension, pay the unit’s expenses, and use whatever was left over for her own needs. The sponsor stated she is not willing to rent the unit out to create income, as she intends it only to be used by the family on visits. For example, she stated that if she travels to Egypt, she will want to stay in it herself. She purchased the unit for EGP 25,000 (approximately AUD 2,188 approximately) and considers it would be worth EGP 100,000 (approximately AUD 8,754) currently. She stated she paid the mortgage off in around 2003-2004. She had accrued no other assets because while she was working, she was using all her income on her children. But now, she cannot live in Egypt for many reasons: life is expensive and if she lives by herself in the unit she will be exposed to burglary and thieves. She adds that none of her other children is in a financial position to help support her. The bank record provided primarily indicates regular withdrawals of amounts close to the monthly deposits.
The applicant stated that in Australia, she does not have a bank account, as her son takes care of all her expenses.
Concern raised at hearing
At the hearing, having heard the evidence of both parties, the Tribunal raised a number of concerns it had about her case concerning the evidence provided. The Tribunal said that while the parties had referred to a bank account in Egypt held by the applicant, relevant bank statements had not been provided, despite the Department having explicitly asked for them. The Tribunal said there appeared to be no evidence of any income stream for the sponsor, yet in the delegate’s decision there is a reference to an amount of AUD 220 paid monthly as a pension. The Tribunal asked whether this is a reference to the same pension that applicant had referred to on review, which she had claimed is paid at the rate of AUD 411 a month. The sponsor stated the information about the $220 pension was false information from the agent and the parties had no awareness of the claim.
Analysis
The parties are currently unrepresented. Their former representative, Hany Boulous of Frontier Migration Pty Ltd, was suspended by his relevant registration body[1], and according to the sponsor, he abruptly ceased returning their calls around that time. In those circumstances, the Tribunal explained to the parties that in their case, whether the applicant had a need to live in Australia was not at issue, the issue was whether the applicant had been wholly or substantially reliant on the sponsor for her basic needs of food, clothing and shelter for a substantial period of time before the visa application, and whether she continues to be, and whether that reliance is greater than the reliance on any other person or source of support.
[1] Registered migration agent details · OMARA Self-Service Portal
The Tribunal notes there is no evidence before the Tribunal that the applicant, who is aged 70 and who suffers from a number of chronic health conditions, is wholly or substantially reliant on the sponsor for financial support because she is incapacitated for work due to the total or partial loss of their bodily or mental functions.
The Tribunal has considered the information before it regarding the degree of dependence of the applicant on her son to meet her basic needs of food, shelter and clothing. The Tribunal considers that this is a case where more information is available to the decision maker on review than was provided to the delegate. In particular, the Tribunal has been provided with bank statements from the applicant’s account in Egypt and a clear statement of her entitlement to and the amount of any Egyptian pension. The Tribunal has also had the benefit of oral evidence provided at hearing.
In forming a view as to the level of the applicant’s dependency, if any, the Tribunal has taken into account the funds received monthly from the applicant’s NASI pension in Egypt and the utilisation of those funds to meet her expenses. In a submission provided post-hearing, the sponsor stated that “My mum gives all her pension in Egypt to my eldest sister who is diabetic and is married with two children. My eldest sister and her family are really struggling financially and without this help from my mum it will be difficult for them to survive in Egypt.” He stated that his sister and her family still need more assistance with the “difficult circumstances currently in Egypt”.
The Tribunal notes the applicant has revised her earlier statement in the hearing that her pension provides her with the equivalent of AUD 411 in monthly income and has since the hearing provided evidence that the pension currently provides the equivalent of AUD 595 per month because it has “increased yearly”. The Tribunal notes the applicant’s claim that she uses that monthly amount to pay her housing-related expenses for a unit in Egypt and the remainder is used by her diabetic and financially disadvantaged daughter.
The Tribunal notes that r.1.05A(1) provides that 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. The Tribunal finds the applicant’s account over time as to whether she received the pension was somewhat varied and inconsistent; however the Tribunal is concerned in this review with whether the outgoings of the sponsor for the applicant’s basic needs outweigh the amount of the applicant’s Egyptian pension of approximately AUD 595 per month. The Tribunal has not established the destination of her pension funds after they are withdrawn, because the applicant has provided no accounting for that, and while there is a reasonable probability they are disbursed as claimed, to her housing expenses and to her daughter, the total sum of AUD 595, even if it were applied to the applicant’s expenses in Australia, is not likely provide adequately for her basic needs in Australia, where, by comparison a basic Age Pension from Centrelink may be up to four times that amount. It is very unlikely, therefore, that the amount of the NASI pension outweighs the costs of those basic needs as borne by her sponsor in the relevant period and currently. There is no evidence before the Tribunal that the applicant has any other sources of income.
The Tribunal has carefully considered the evidence before it as to whether, in the relevant period and at the time of this decision, the applicant was and is wholly or substantially reliant on her nominated relative, her son and sponsor, for financial support to meet her basic needs for food, clothing and shelter; and that reliance is greater than their reliance on any other person or source of support. The Tribunal has taken into account that the visa applicant is not precluded from receiving some support from another person or source of support, but their reliance on any other person or source of support must not be greater than their reliance on the nominated relative. When considering support that comes from elsewhere, it can come from an individual (the ‘any other person’) or a collective (source of support). The source of financial support relied on by a visa applicant is a question of fact for the Tribunal. [2]
[2] Fusi v MIAC [2012] FMCA 1037 at [50] – [51].
In Nguyen v MICMSMA, the Court interpreted ‘any other…source of support’ in reg 1.05A(1)(a)(ii) as denoting support provided by two or more people acting collectively in providing financial support for food, clothing and shelter to the visa applicant.[3]
[3] Nguyen v MICMSMA [2020] FCCA 2705 at [34]. The Court found the Tribunal did not make any jurisdictional error to the extent it aggregated the contributions of the visa applicant’s grandmother and aunty (with whom he lived) when determining whether the visa applicant’s reliance for financial support on the sponsor was greater than her reliance on the support provided by the grandmother and aunty.
The applicant has provided evidence that she receives monthly support from the National Authority for Social Insurance in Egypt as an entitlement of her former employment in the banking sector. The Tribunal concludes that this support is a sum not greater than the sum of her reliance on her son, who has provided considerable evidence that he has been responsible for the applicant’s basic needs without any support from another person or source since she applied for the visa. The Tribunal notes the applicant’s claims that her housing unit in Egypt does not produce income and that she has no other source of support provided by two or more people acting collectively in providing financial support for food, clothing and shelter for her. The Tribunal notes her Egyptian bank account does not reflect any credits apart from her pension income, which tends to support the claims although a further source of undisclosed income cannot be ruled out. On balance, however, the Tribunal accepts the applicant’s sworn evidence that the NASI pension is the sole source of income she receives.
The Tribunal is satisfied on the evidence before it that the applicant is wholly or substantially reliant on the sponsor for her basic needs; and the reliance is greater than on any other person or source of support. The Tribunal is satisfied that the applicant is an aged dependent relative of the sponsor.
For these reasons subparagraph (b) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.
Is the applicant old enough to be granted an age pension?
To meet the definition of ‘aged dependent relative’ the applicant must be old enough to be granted an aged pension under the Social Security Act 1991 (Cth). Different age qualifications apply for men and women and depend upon the date of the applicant’s birth.
The applicant has provided evidence that she is old enough to be granted an age pension under the Social Security Act 1991 (Cth). For these reasons subparagraph (c) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.
For the reasons set out above, 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.
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
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
Meredith Jackson
Member
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