Chung Ting Wan (Migration)

[2018] AATA 1185

Chung Ting Wan (Migration) [2018] AATA 1185 (4 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Fee Lan Chung Ting Wan

CASE NUMBER:  1605881

DIBP REFERENCE(S):  CLF2015/71738

MEMBER:Kira Raif

DATE:4 April 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 04 April 2018 at 10:33am

CATCHWORDS

Migration – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – Whether the applicant is an aged dependent relative – Applicant has several children – Financial support – Children are willing to provide financial support to their mother – Applicant not solely dependent on sponsor at the time of the application

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 12 April 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 Mauritius, born in October 1950. The applicant applied for the visa on 19 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 3 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son, the sponsor. The applicant nominated other witnesses to give oral evidence but the Tribunal determined it was not necessary to do so because the Tribunal accepts the entirety of the applicant’s evidence and the written submissions, which included statements from some of the nominated witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the French 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. The criteria for a Subclass 838 visa are set out in Part 838 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

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 claims to be a widow and she has provided a death certificate relating to her late husband. She meets subparagraph (a) of the definition of ‘aged dependent relative’. The applicant was born in 1950 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. The applicant claims to be dependent on her son.

8. The applicant provided lengthy written submissions to the Tribunal on the evening of 7 March and a further submission on 8 March 2018. This was done only hours before the scheduled hearing and nearly two years after the application for review was made. No explanation is offered by the applicant’s representative for the extremely late submission of documents or for failure to comply with paragraph 5.1 of the AAT Practice Directions on Migration and Refugee Matters. The applicant was represented by GRC Lawyers.

9. In her written submission the applicant outlined her concerns with the primary decision and claims she was denied procedural fairness. The Tribunal considers this unhelpful since the Tribunal conducts a review de novo. The applicant provided financial records, including her bank statements and information about the pension, the sponsor’s financial records as well as a number of statements from third parties which confirm her dependence on the sponsor. The applicant also presented a number of family photographs to the Tribunal. The Tribunal considers statements from third parties unhelpful insofar as they establish the applicant’s dependence because the Tribunal does not consider family friends and relatives would necessarily be aware of the details of the family’s financial affairs and circumstances.

10. The applicant stated in her application that she was supported by her two sons in Australia. She provided to the delegate a number of financial and other records showing some monetary interactions between the applicant and her sons, as well as statements from the applicant’s relatives in Australia. The delegate notes in the decision record that the applicant’s bank statements do not evidence the provision of financial support by the sponsor.

11. With respect to her income, the applicant claims that she was in receipt of a pension from Mauritius but has not received such pension since arriving in Australia in June 2014. The applicant claims that she has been relying on her two sons in Australia and has been living with both of her sons during various visits to Australia. She claims her sons provide her with financial support for all her needs. The applicant provided to the Tribunal a number of statements from third parties who confirm that the applicant relies on the sponsor for her financial needs. The Tribunal also acknowledges the statement from Father Lewis that it might be detrimental to the sponsor’s “physical and moral wellbeing to tear him away from his mother” but these are not matters that establish financial dependence required by the legislation.

12. The applicant told the Tribunal in oral evidence that she travelled to Sydney twice, in 2013 and 2014 and spent a year at a time here. She said that spent about a year in Perth before making the application for the visa. The applicant said when she lived in Sydney, it is her ‘Sydney son’ Charles who looks after her and when she is in Perth, it is her ‘Perth son’ Bernard (the sponsor) who looks after her. The applicant confirmed she had also spent about ten months in Mauritius in the three years before the visa application was made. The applicant said that when in Mauritius, she stays at a house that was built by her daughter but the house belongs to her sons. The sponsor explained that the house was left by their late father to all the children but the house where the applicant lived belongs to the two brothers and following the hearing the applicant provided evidence relating to the property ownership. The sponsor told the Tribunal the house is registered in his name and all the utility bills are in his name.

13. The applicant’s evidence to the Tribunal is that she receives a pension of about 3000 rupees when she is in Mauritius but she does not receive anything when she is in Australia. She spends this money to pay for electricity and water and food but that is not sufficient to meet the food costs. The applicant said she spends a few hundred on domestic bills and maybe 2000 rupees on food. The applicant said there is not enough money for other expenses and the sponsor’s evidence to the Tribunal is that in Australia his mother has greater support and is able to have much more than she can access in Mauritius. The applicant initially told the Tribunal that when she is in Mauritius, her children do not support her. However, the sponsor’s evidence is that he did not send money to his mother when she is in Mauritius but he did leave little sums when he visited Mauritius. The applicant confirmed that she did receive sums of money from both of her sons when she was in Mauritius.

14. The Tribunal has found the applicant and the sponsor to be truthful witnesses. The applicant’s evidence is that when she lived in Sydney, she is dependent on her son who is not the sponsor. When in Mauritius, she relies on her pension, which is supplemented by financial support from two of her sons. It is only when she lived in Perth that she has been fully reliant the sponsor, for her basic needs. The Tribunal accepts that the sponsor is willing to provide financial support to his mother and that he has been doing so since she has been living with him and while she was in Mauritius. However, so do the other children.

15. In the post-hearing submission to the Tribunal the applicant’s representative states that even though she did receive cash gifts from other children, she has been reliant on the sponsor for a number of years. The Tribunal is mindful that this is inconsistent with the applicant’s oral evidence to the Tribunal when she claimed she received gifts of approximately $1000 from each of her two sons in Australia when she lived in Mauritius. There is simply no basis for the representative’s submission that the applicant dependence on Charles was ‘minimal’ while her reliance on Bernard was ‘substantial’. The applicant’s oral evidence indicates reliance on both of her sons.

16. The Tribunal finds that when in Mauritius, the applicant relies on her pension as well as the financial support of the two sons to meet her basic needs for food, shelter and clothing. The Tribunal finds that when the applicant lived in Sydney for approximately two years in the period before her application was made, she was reliant on her second son Charles and not on the sponsor. The Tribunal accepts that since the applicant has been living in Perth with her son Bernard, she has been fully reliant on him for financial support to meet her basic needs but the Tribunal is not satisfied such dependence existed for a reasonable time before the application was made. While the Tribunal accepts that since the application was made, the applicant has been fully reliant on the sponsor, the Tribunal is mindful that the relevant dependence must exist not only at the time the application was made but also for a reasonable period before the application was made for the purpose of cl. 838.212 and a substantial period for the purpose of r. 1.05A(1).

17. The Tribunal finds that until the applicant has established residence in Perth, her reliance was on both sons and the Tribunal is not satisfied her reliance on the sponsor was greater than on any other source.

18. The Tribunal is not satisfied that at for a substantial period immediately before the time of the application, the applicant has been wholly or substantially reliant on the sponsor for financial support to meet her basic needs for food, clothing and shelter and the Tribunal is not satisfied the applicant’s reliance on the sponsor was greater than any reliance by her on any other person or source of support for financial support to meet her basic needs for food, clothing and shelter. The Tribunal is not satisfied the applicant meets r. 1.05A(1)(a).

19. The applicant stated in oral evidence that she used to work in her own boutique but now has problems with varicose veins and needs to wear stockings all the time. The applicant said she cannot stand or walk for long period. The Tribunal acknowledges that evidence but does not consider that this amounts to incapacity for work due to total or partial loss of bodily or mental functions, particularly if the applicant is able to engage in any type of employment that does not require walking or standing for long periods. The Tribunal is not satisfied the applicant meets r. 1.05A(1)(b).

20. The Tribunal is not satisfied that at the time of the application, the applicant was a dependent relative of the sponsor. The Tribunal is not satisfied the applicant meets cl. 838.212.

21. The applicant told the Tribunal that she has two daughters living in Europe and another son in Mauritius. According to the application form, she has several siblings in Canada and Mauritius. 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

22. 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

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

    Kira Raif
    Senior Member