Alla (Migration)

[2020] AATA 3054

Alla (Migration) [2020] AATA 3054 (20 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Fitnete Alla

CASE NUMBER:  1726898

DIBP REFERENCE(S):  CLF2016/18014

MEMBER:Kira Raif

DATE:20 July 2020

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 20 July 2020 at 10:38am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – dependent on Australian relative for substantial period – applicant’s small pension not enough to cover basic needs – sponsor’s financial support generally paid in cash – substantial sum left with another relative for applicant’s use when sponsor migrated to Australia – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.03, 1.05A(1), Schedule 2, cll 838.111, 838.212, 838.221

CASES

Huang v MIMIA [2007] FMCA 720

Huynh v MIMIA (2006) 152 FCR 576

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 17 October 2017 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 Albania, born in April 1935. She  applied for the visa on 18 March 2016. 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 dependent on her Australian relative. The applicant seeks review of the delegate’s decision.

3. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The applicant appeared before the Tribunal on 20 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s granddaughter. The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian and English languages. The 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

5. 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. The criteria for a Subclass 838 visa are set out in Part 838 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

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.

7. 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.

8. 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).

9. For the purposes of this application, reference to a ‘substantial period’ in r.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 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 at [43].

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

10. The applicant stated in her application that her husband is deceased and she provided evidence of his death. The Tribunal is satisfied that the applicant does not have a spouse. She meets subparagraph (a) of the definition of ‘aged dependent relative’ at the time of application and the time of decision.

11. The applicant was born in 1935 and was 80 years of age when the application was made. The Tribunal is satisfied the applicant was old enough to be granted an aged pension under the Social Security Act 1991. Subparagraph (c) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.

12. The issue before the Tribunal is whether the applicant is dependent on her Australian relative.

13. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant claimed in her application to have been dependent on the sponsor for close to 12 years. The applicant stated that she received 165 lek a month from Albania, which was not sufficient to cover her expenses. The applicant said she had no other income and no savings. The applicant stated that the sponsor left her 5000 lek before migrating to Australia and had been supporting her since migration to Australia. The applicant stated that she and her daughter were building a block of units and intended to retain one unit and sell others. The applicant provided a number of documents to support her claims.

14. The delegate noted that the various documents showed that the sponsor paid for the applicant’s medical expenses but these were not ‘basic needs’. The delegate acknowledged that the applicant’s pension may not be sufficient to cover her living expenses in Australia and that the sponsor may provide the applicant with food, shelter and clothing since the applicant’s arrival in Australia but the delegate noted that the applicant had spent 8 months in Australia out of 3 years prior to the application being made. The delegate found that there was insufficient evidence to establish the applicant’s dependence on the sponsor during that period.

15. The applicant provided additional written evidence to the Tribunal on 14 July 2020. The applicant provided, through her representative, a submission addressing the statutory criteria. The applicant confirmed that her spouse passed away in May 2004 and that she does not have a spouse. The applicant states that she has always lived with her daughter and became dependent on her daughter for financial assistance since the death of her spouse, since her pension was insufficient to pay her living expenses and the husband’s pension ceased upon his death. The applicant states that she has been relying on her daughter since 2004 to meet her basic needs. She has no family in Albania. Her Albanian pension ceased when she left the country and the applicant described the situation in the country concerning financial affairs. The applicant included with her submission a number of documents, which include medical evidence and evidence that her medical bills have been paid by the sponsor. There is also evidence indicating that the sponsor has paid for various other expenses including accommodation and related expenses in Australia.

16. The Tribunal accepts, as did the delegate, that since the applicant’s arrival in Australia, the applicant has been fully finally reliant on her daughter. However, the issue is whether the applicant was a dependent relative when the application was made. As the primary decision record indicates, the applicant had spent about 8 months in Australia in the three years before the application was made.

17. There is little evidence about the applicant’s incapacity before the Tribunal. However, the Tribunal notes that the applicant was nearly 81 years of age when the application was made. The applicant told the Tribunal she suffers from high blood pressure and heart problems and age-related problems. She said she has had these health problems for a number of years, they developed before she came to Australia and she has not worked 50 and has not worked since then. Having regard to the applicant’s evidence, various medical reports submitted with the application and to the Tribunal and the applicant’s age, the Tribunal finds that the applicant is incapacitated for work due to the total or partial loss of her bodily or mental functions.

18. The applicant told the Tribunal in oral evidence that she received a pension of 165 lek until she came to Australia in 2015. Since she arrived in Australia, she has been living with her daughter and her daughter has been supporting her financially. The applicant said that  before she came to Australia, she had always lived with her daughter. Her daughter migrated to Australia about seven months before she did. During this period she lived with another relative and her daughter gave money to that  relative to look after her. The applicant said there are no bank records to show the money transfer. Her daughter gave cash to this relative and there was no evidence of the funds being given other than statements. The applicant said that this relative bought her whatever she needed.

19. The applicant said that she lived with her daughter until the daughter came to Australia and since that time, she lived with a relative for about nine months. The applicant said her pension was very small and not sufficient to meet the daily expenses. The representative submits that bank statements were not available and expenses were generally paid in cash. The applicant said that she and her daughter were left a property, which was dilapidated. They were approached by a construction company to build a block of units. The construction has not been completed yet and no units have been sold, so no money exchanged hands.

20. The applicant’s granddaughter told the Tribunal that there is no bank system in Albania at the time. To receive a pension, the applicant would have received the money from the post office and used cash to pay for her living expenses.

21. The Tribunal generally accepts the applicant’s evidence. The Tribunal accepts that prior to the daughter’s migration, the applicant lived with her daughter and her daughter provided financial support to the applicant. The Tribunal accepts that since the daughter migrated to Australia, her daughter left a substantial sum of money to meet the applicant’s needs. The Tribunal acknowledges that the applicant received a pension but accepts that such pension was insufficient to cover all her needs and the sponsor’s financial support was necessary to meet her needs. Whether or not the applicant’s reliance on the sponsor was greater than her reliance on any other source, the Tribunal is satisfied that the applicant’s reliance on the sponsor was necessary to meet her needs. The Tribunal finds that such support was substantial, whether or not it was predominant.

22. The Tribunal is satisfied, on balance, that for a period of three years before the application was made, the applicant was substantially reliant on her daughter for financial support because the applicant was incapacitated for work due to the total or partial loss of her bodily or mental functions. The Tribunal is satisfied that the applicant was dependent on the sponsor at the time of the application and for a reasonable period prior to that time. She meets paragraph (b) of the definition of ‘aged dependent relative’.

23. 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.

    Conclusion

24. 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

25. 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