Begam (Migration)

[2023] AATA 2751

Begam (Migration) [2023] AATA 2751 (17 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Daly BEGAM
Miss Sanjida BAISAKHI

REPRESENTATIVE:  Mr Feng Chen (MARN: 1577771)

CASE NUMBER:  2014453

HOME AFFAIRS REFERENCE(S):          CLF2018/193102

MEMBER:Joseph Francis

DATE:17 August 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named 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 17 August 2023 at 3:17pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – aged dependent relative of an Australian relative – substantial period of dependency – money transfers – financial support in Bangladesh and Australia – age qualification – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 838.111, 838.212, 838.221; rr 1.03, 1.05
Social Security Act 1991

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 Home Affairs on 9 September 2020 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visa on 28 August 2018. 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 applicants are 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 to this matter, the primary criteria to be met include cl 838.212.

3. The delegate refused to grant the visas on the basis that cl 838.212 because the requirement of Regulation 1.03(b) was not demonstrated to be met by the visa applicant.  This specific regulation requires the applicant to be a dependent for a reasonable period of time. The term ‘dependent’ is defined in regulation 1.05A.

4. The review applicant appeared before the Tribunal on 31 January 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

5. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa application was made on the basis that the applicant is the aged dependent relative of her sponsor, Mr Mohammad Miah, who the applicant claims is their relative. Relative is also 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).

8. In this case Mr Miah is an Australian Permanent Resident and is the visa applicant’s son.

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

9. 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 continues 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.

10. 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).

11. In this case, the applicant is the ‘relative’ of an Australian relative for the purposes of cl 838.212.  The applicant provided a birth certificate as evidence of her relationship with the sponsor. 

    Does the applicant have a spouse or de facto partner?

12. Regulation 1.03(a) requires an aged dependent relative must not have a spouse or de-facto partner. The visa applicant declared that she is widowed and provided a death certificate for her deceased spouse. The Tribunal is therefore satisfied that Regulation 1.03(a) is met.

    Is the applicant dependent on the Australian relative?

13. 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).

14. 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].

15. A ‘reasonable period’ in relation to an aged care dependent relative is taken, under policy, to be three years.  The delegate therefore assessed the evidence of support provided by the sponsor to the visa applicant in the three-year period prior to the visa application being made.  This period covers from 28 August 2015 until 28 August 2018.

16. On 8 September 2020, prior to the delegates decision, the applicant was requested to provide further evidence of being financially dependent on the sponsor.  The visa applicant replied on 20 July 2020 and provided further evidence, including:

    ·     Money transfers for period 08 May 2014 to 16 May 2018

    ·     Home insurance policy

    ·     Bank statements for sponsor

17. The delegate considered the supporting evidence and remained unsatisfied that the visa applicant was wholly or substantially reliant on the sponsor for the three years prior to the application, in particular for the period when she resided in Bangladesh.  Therefore, the delegate found the applicant did not meet regulation 1.05A within the meaning of dependent.

18. Following the hearing, the Tribunal has received substantially more evidence than what was available to the delegate. This includes:

    ·     Bank statements of sponsor

    ·     Bank statements of visa applicant indicating transfers from sponsor

    ·     Budget of living expenses for visa applicant in Bangladesh

    ·     Mortgage statements of sponsor

    ·     Family Tree indicating other members and why they can’t care for visa applicant

    ·     Utility bills supporting claim sponsor and visa applicant reside together in Australia

    ·     Medical bills from 2018 to 2023 for visa applicant

19. The Tribunal considered all of the evidence that was provided, including the claim that other children of the visa applicant were unable to provide support to their mother, and reasons why they were unable to do so.  Specifically, the Tribunal considered the evidence provided indicating that the sponsor had provided financial support and living arrangements for his mother both when she resided in Bangladesh and for the period she has remained in Australia.  The Tribunal finds the reliance of the visa applicant on the sponsor is greater than any other person for the provision of clothing, food and shelter.

20. The Tribunal, after weighing the available evidence, is satisfied that the sponsor has provided substantial support to his mother for at least the three-year period prior to the visa application being made. 

21. As such, the Tribunal is satisfied that the primary visa applicant, Ms Daly Begum, meets regulation 1.05A with respect to the definition of aged dependent at the time of application.

    Is the applicant old enough to be granted an age pension?

22. 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.

23. It is not in dispute that the visa applicant was aged 65 years and 10 months at the time of application and would be old enough to have been 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 this decision.

24. For the reasons set out above, the Tribunal is satisfied that the primary applicant is the aged dependent relative of an Australian relative at the time of application for the purposes of cl 838.212.

25. 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

26. The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 838 (Aged Dependent Relative) visa:

    · cl 838.212 of Schedule 2 to the Regulations.

    Joseph Francis
    Member