Chan (Migration)

[2018] AATA 845

Chan (Migration) [2018] AATA 845 (28 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yuk Yin Chan

CASE NUMBER:  1604252

DIBP REFERENCE(S):  CLF2015/68481

MEMBER:Kira Raif

DATE:28 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 28 March 2018 at 4:14pm

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – Sponsored by niece – Joint bank account with niece and nephew – Close relationship with niece and nephew – Whether reliant on sponsor for basic needs – Whether reliance on sponsor greater than reliance on any other source – No evidence of applicant being incapacitated for work

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

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 22 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 China (HKSAR) born in July 1948. She applied for the visa on 2 November 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 an aged dependent relative of an Australian relative. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 21 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese 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 decision under review should be affirmed.

   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 provided with the application a single status certificate. She meets subparagraph (a) of the definition of ‘aged dependent relative’. The applicant was born in July 1948 and the Tribunal is satisfied she 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’.  The issue is whether the applicant has been dependent on the Australian relative for a reasonable period, and remains so dependent.

8. The applicant was sponsored in her application by Ms Chi Shan Ivy Chan, her niece. The applicant provided with her application her bank records which show that she has a joint account with the sponsor and Mr Ho Kit Thomas Chan (the sponsor’s brother), as well as evidence of having access to about $8000 in savings. The applicant provided an explanation about her income and expenses and various bank records. In her statement the applicant claims she has been dependent on the sponsor and the sponsor’s brother for a number of years.

9. The delegate noted that while the applicant may have been receiving financial support from both the sponsor and her brother, it was impossible to determine who provided the greater share of support and whether the applicant’s reliance on one was greater than her reliance on the other. The delegate also noted that there was evidence that the applicant owned property in Hong Kong, which was subject to a mortgage.

10. The applicant provided a detailed written submission to the Tribunal on 14 March 2018 and a further submission on 27 March 2018. With respect to her relationship with the sponsor, the applicant states that she is the half-sister of the sponsor’s father and is the aunt of the sponsor. The applicant presented birth certificates for the sponsor and the sponsor’s father but she claims she does not possess a birth certificate. The applicant provided a declaration, as well as other documents including Hong Kong Immigration papers identifying her parents and her mother’s and grandmother’s wills setting out her relations and showing that the applicant father and the sponsor’s grandfather are identified as Yau Chan. It is not necessary for the Tribunal to determine the applicant’s relationship with the sponsor in light of the findings below concerning her dependence.

11. With respect to dependency, the applicant claims she has been dependent on the sponsor since 2010, which is a reasonable period. The applicant claims that she has a special bond with the sponsor, because she brought her up from a young age, and she had nominated the sponsor as a beneficiary on her policies 17 years ago. The applicant states that since she retired in 2010, she was unable to sustain herself and the sponsor provided her with support. The applicant presented bank records showing transfers from the sponsor to the applicant dating from 2010.

12. The applicant claims that since arriving in Australia in late 2012, she has been living with the sponsor and the sponsor’s brother and was not required to pay for living expenses. The applicant’s evidence is that the sponsor withdraws money from her bank account and gives an allowance to her. The applicant states that the home is owned by the sponsor’s uncle and no rent was payable and if it was not for the sponsor, she would have no place to live in Australia. The applicant also refers to the emotional support and companionship provided by the sponsor but the Tribunal is mindful that dependence is limited to financial support.

13. The applicant states that she has a close relationship with her nephew Thomas, who also desires to support her, but the main source of the applicant’s financial and emotional dependence ins on the sponsor. With respect to the term deposit of $8000 which the applicant holds jointly with Thomas, the applicant claims that is not sufficient to establish her dependence on Thomas. The applicant claims that the sponsor’s contribution towards her are far greater than anybody else’s.

14. With respect to the property in Hong Kong, the applicant outlines the details of the property ownership, stating that it is held in trust for the benefit of the entire family and does not belong to any individual. The Tribunal is mindful that the mere existence of the property cannot negate dependence. This is particularly so if there is no suggestion that the applicant derives any financial benefit from this property, so that any income the applicant may have from the sponsor is not outweighed by any income from the property. The Tribunal also notes that the applicant has been living in Australia for about three years before making the application for a visa, and not in any way relying on the property in Hong Kong, and the Tribunal considers that three years is a substantial period for the purpose of establishing dependence.

15. The applicant confirmed in oral evidence to the Tribunal that since coming to Australia, she has been living with the sponsor and Thomas at a house owned by an uncle. The applicant said that the uncle does not charge rent but the sponsor pays rates and other outgoings. The applicant said she does not contribute to these outgoings. The applicant said that Thomas also lives in the same household although she was not sure how they share the financial arrangements.

16. The sponsor’s evidence to the Tribunal is that her brother does not contribute to the household expenses. The Tribunal is mindful that this is not consistent with the applicant’s evidence which indicates that both the sponsor and her brother contribute to various bills. Ms Chan then said that her brother gives her small amounts but these are not enough to pay for the utilities and she is the primarily responsible for the payment of the household expenses because her family is bigger.

17. The applicant told the Tribunal that both Thomas and Ivy give her money but Thomas has his own family to support and he only gives her small sums while Ivy is the main provider. Following the hearing the applicant provided to the Tribunal evidence relating to Thomas’ expenses but the Tribunal is mindful that such financial obligations do not preclude the payment of his living expenses in Australia. The sponsor gave the same evidence to the Tribunal, stating that her brother either provides no financial support to the applicant or that such support is minimal. The Tribunal notes however that on the application form the applicant stated that she was dependent on both the sponsor and Thomas for the same period (five years). The applicant’s and the sponsor’s evidence at present appears to have changed for the benefit of the visa application. That is, having read the delegate’s concerns about both Ivy and Thomas providing financial support, the applicant shifted her evidence to state that it is only the sponsor and not the sponsor’s brother who provides her with financial support. The Tribunal prefers the applicant’s evidence on the application form which refer to the financial support being provided by both relatives.

18. The applicant told the Tribunal that Thomas had provided her with financial support in the past but very little since 2015 when he married and had to support his wife. The applicant claims that since that time Thomas has not given her any financial support. The applicant’s evidence to the Tribunal is that Thomas only gave her money if she asked but it was predominantly Ivy who gave her money for all expenses.  As noted above, such evidence contradicts the information the applicant gave in October 2015 in response to Question 68 of the application form when she claimed she was reliant on both. The applicant told the Tribunal that she does not speak English and did not understand the content but the Tribunal does not accept that evidence, since the applicant was represented by an agent with whom she could presumably communicate and she could have asked the agent, or her niece and nephew to translate for her if there was any need for it. The Tribunal does not consider the information on the application form to be unreliable. The Tribunal further notes that even if the Tribunal were to accept the applicant’s evidence that Thomas has been supporting his partner since 2015, it does not deny the existence of financial support from Thomas at the time of the application and for a reasonable period before the application was made.

19. The Tribunal acknowledges that the applicant has a joint bank account with Thomas however there is no evidence of that account being used or of the applicant being reliant on any funds from that account for her food, shelter and clothing. The applicant’s evidence to the Tribunal is that she was once robbed and since then has been was too scared to use the bank account. The Tribunal accepts that the applicant is not using the account.

20. The applicant’s evidence is that both Ivy and Thomas pay for the food and if they go out, they pay in turns. (The sponsor told the Tribunal that she pays much more than Thomas and his contribution for food is minimal.) The Tribunal is not satisfied on the evidence before it that the applicant’s reliance on the sponsor for food is greater than her reliance on any other source, such as Thomas. Further, the Tribunal is not satisfied that the applicant is wholly or substantially reliant on the sponsor for shelter because shelter is being offered by an uncle and both the sponsor and Thomas contribute to various living expenses associated with property maintenance.

21. The Tribunal accepts that the applicant is reliant on her niece and nephew and that there is a close relationship between them. The Tribunal accepts the various financial records which show that money transfers have been made by the sponsor to support the visa applicant for a number of years. The Tribunal accepts that it may be the sponsor who covers the applicant’s various expenses such as health insurance, transport, medication, etc. However, such expenses are not matters that the Tribunal is able to consider when assessing dependence.

22. The Tribunal has considered the totality of the documentary evidence, including financial records, medical records and a number of written submissions to the delegate and the Tribunal, in addition to the oral evidence. Overall, the Tribunal accepts that the applicant is financially reliant on the sponsor and that includes reliance for her basic needs for food, shelter and clothing, however, the Tribunal has formed the view that she was also reliant on Thomas. The Tribunal is prepared to accept that since Thomas’ marriages, he has other commitments and his financial contribution to the applicant has reduced. However, the Tribunal has formed the view that when the application was made in 2015, the applicant was reliant on both to meet her basic needs. The applicant referred to having a close relationship with the sponsor but the same close relationship would exist between the applicant and Thomas as on her own evidence, she brought up both children. The applicant herself stated on the application form that she was reliant on both relatives for the same period of time and the Tribunal has formed the view that the subsequent shift of evidencing identifying the sponsor as the predominant source of financial support has been made in response to the delegate’s findings. While the Tribunal accepts that the applicant is reliant on the sponsor for financial support to meet her basic needs, the Tribunal is not satisfied on the evidence before that at the time the application was made and prior to that time, such reliance on the sponsor was greater than her reliance on any other source, such as Thomas. The Tribunal is not satisfied the applicant met r. 1.05A(a) at the time of the application.

23. The Tribunal invited the applicant to address the issue of incapacity. Following the hearing, she provided a number of medical reports to the Tribunal. The reports indicate that the applicant suffers from mild sloping and hearing loss. With respect to the sloping, the applicant’s evidence to the Tribunal is that she had it from early childhood and despite that condition, she has been working for most of her adult life. The Tribunal does not consider that his condition rendered the applicant incapacitated for work. The Tribunal also accepts that the applicant has hearing loss, but again, the evidence does not establish that this condition results in the applicant being incapacitated for work. The medical evidence refers to the applicant presenting with complaints of depression and insomnia. There is no clinical diagnosis of her suffering from depression and insomnia and on the limited evidence before it, the Tribunal does not accept the applicant suffers from these conditions or that such conditions render her incapacitated for work.

24. The applicant’s representative argues in the submission of 26 March 2018 that due her age, medical conditions and lack of English, the applicant is unable to work. However, the issue before the Tribunal is not whether she is unable to work or whether she has any prospect of finding employment in the future. The issue is whether the applicant is incapacitated for work due to the total or partial loss of her bodily or mental functions. The representative argues that given the applicant’s age, an expectation for her to work is ‘prejudicial and unmerited’. With respect to the representative, the Tribunal notes that the issue of incapacity (which is what was discussed at the hearing, rather than the applicant’s employability) is relevant in assessing r. 1.05A(b).

25. The Tribunal is not satisfied that the presented evidence establishes the applicant’s incapacity for work due to the total or partial loss of her mental or bodily functions. The Tribunal is not satisfied the applicant meets r. 1.05A(b).

26. The Tribunal also accepts the applicant’s evidence that she will be ‘miserable’ if she has to return to Hong Kong as she will have nobody to support her in her old age. The applicant claims she has nowhere to live. The Tribunal accepts that she has a close relationship with the sponsor and has settled in Australia. These are not matters capable of establishing dependence.

27. For the reasons stated above, the Tribunal is not satisfied that the applicant was a dependent relative of the sponsor at the time the application was made. The Tribunal is not satisfied that the applicant was dependent on the sponsor for a reasonable period before the application was made. The Tribunal is not satisfied the applicant meets cl. 838.212.

28. The applicant stated on the application form that her parent and sibling reside in Hong Kong. The Tribunal finds that the applicant has near relatives who do not reside in Australia and the Tribunal is not satisfied the applicant is a Remaining Relative of an Australian relative. She does not claim to be a carer of another person and has not presented the Carer certificate. The Tribunal is not satisfied the applicant meets the requirements for the Carer visa.

    Conclusion

29. For the reasons above, the Tribunal finds that the applicant does not meet the criteria for a Subclass 838 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

    DECISION

30. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Kira Raif
    Senior Member