Doan (Migration)

[2021] AATA 3584

Doan (Migration) [2021] AATA 3584 (31 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Phuc Doan

CASE NUMBER:  1906619

HOME AFFAIRS REFERENCE(S):          CLF2017/35719

MEMBER:Mila Foster

DATE:31 August 2021

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 31 August 2021 at 11:24am

CATCHWORDS

MIGRATION ­– Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – definition of ‘aged dependent relative’ is met – applicant has not been financially dependent on the sponsor as she claims –  no medical evidence of diminished functioning has been provided – not meeting the relevant definition of dependence –applicant is not incapacitated– decision under review affirmed 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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 March 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 11 May 2017, approximately two months after arriving in Australia from Vietnam. At that time she applied for the visa, 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). Relevant to this matter, the primary criteria to be met include cl 838.212.

3. The delegate refused the visa on the basis that the applicant did not meet cl 838.212 because she was not wholly or substantially reliant on her sponsor to pay for her basic needs during the three year period prior to the lodgement of the visa application.

4. The applicant was represented by a registered migration agent in connection with her visa application and review application.

5. Having considered the claims and evidence, the Tribunal has concluded for the following reasons that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant claims she is the 84-year-old aged dependent relative of her granddaughter, Cam Loan Nguyen, who is an Australian citizen and her sponsor for the visa. She claims she has been wholly financially reliant upon the sponsor to meet her daily needs for food, clothing and shelter since 2009 and including the time since she arrived in Australia in March 2017.   

7. The evidence before the Tribunal includes the Department file relating to the applicant’s visa application. That file contains the visa application as well as submissions and documents the applicant presented in response to an invitation to comment on adverse information and a request for more information. The evidence presented on review includes documents submitted by the applicant in response to a request for further information as well as oral evidence the applicant and sponsor gave at a Tribunal hearing and oral submissions the applicant’s migration agent made at the hearing.

8. The issue in the review is whether the applicant was an ‘aged dependent relative’ at the time of application.

   Summary of claims and evidence

9. The following is a summary of the claims and evidence that are relevant to the issue in the review.

   Visa application

10. The applicant claimed in her visa application that she was a widow who had been dependent on the sponsor for financial support to meet her basic needs for food, clothing and shelter since 2009 when her eldest son and the sponsor’s father died. The applicant claimed she had lived with her eldest son prior to his death and she had been financially dependent upon him since she retired in 2003. She claimed she had three other children, all of whom resided in Vietnam who could not financially support her.

11. The applicant claimed her monthly food costs were VND3,500,000 (about AUD200) and her monthly clothing costs were VND350,000 (about AUD20).[1] She claimed the sponsor provided the financial support for her basic needs by means of money transfers and cash. She claimed the sponsor brought the cash with her on visits she made to Vietnam in 2011 and 2014 and the sponsor gave her mother cash to pass on to the applicant when her mother travelled to Vietnam. The applicant claimed that at the end of 2014 the house she lived in in Long Thanh hamlet, Quon Long commune, Cho Gao district, Tien Giang province in Vietnam had to be rebuilt after the government cleared an area for an embankment. The applicant claimed the sponsor was responsible for rebuilding her house. The applicant claimed the sponsor sent a total of AUD9.731.80 via money transfers to the builder, Tran Quang Bao, and gave him cash when she visited Vietnam in 2014. The applicant claimed that since arriving in Australia, she has lived with and been financially supported by the sponsor.

    [1] The amounts in AUD were provided in the visa application, the amounts in VND were provided later in a document titled ‘Responses to Questionnaire for Aged Dependent Relative’ dated 12 September 2018.

12. Documents submitted in support of the visa application included the following:

    a.    statutory declarations made by the applicant and the sponsor on 8 May 2017,

    b.    a Form 40 ‘Sponsorship for migration to Australia’ form completed by the sponsor,

    c.     14 money transfer receipts,

    d.    a letter from the Commonwealth Bank dated 7 May 2017 which states that the sponsor had a balance of AUD48,816.68 credit in her account, and

    e.    a record of transactions issued by the St George bank on 5 May 2017 showing transactions in the sponsor’s account from 15 March 2017 to 3 May 2017.

13. The sponsor indicated in the Form 40 that adult family members she had in Australia who were not her dependents were her sisters Ngoc Diem Nguyen and Hieu Nghia Nguyen, her stepbrothers Thanh Dat Nguyen and Thanh Nhan Nguyen, her mother and her stepmother.

14. The sponsor was identified on all 14 money transfer receipts as the sender of the funds. The date of the receipt, the name of the recipient/s of the money, the total amount of money remitted, and the method used to pay for the money transfers are as follows:

Date	Recipient/s	Amount sent (AUD)	Payment method[2]
26 May 2014	Doan Thi Phuc        Nguyen Ngoc Phung	200.90	Cash
5 October 2014	Tran Quang Bao	2,699.80	Cash
13 January 2015	Tran Quang Bao	6,996	Cash
14 February 2015	Doan Thi Phuc        Nguyen Ngoc Phung	5,459.46	Cash
6 May 2015	Doan Thi Phuc	399.30	Cash
23 August 2015	Doan Thi Phuc Nguyen Thanh Dat	394	Not apparent
17 September 2015	Doan Thi Phuc	374.30	D[3]
7 November 2015	Doan Thi Phuc	400	EFTPOS-DEBIT
12 December 2015	Doan Thi Phuc	370.35	EFTPOS-DEBIT
9 March 2016	Doan Thi Phuc	302.85	D
5 August 2016	Doan Thi Phuc - Nguyen Ngoc Phung	767	Not apparent
15 September 2016	Doan Thi Phuc/ Nguyen Ngoc Phung	1400	Cash
21 January 2017	Doan Thi Phuc/ Nguyen Ngoc Phung	1283	Cash/EFTPOS
23 February 2017	Nguyen Ngoc Phung (for Doan Thi Phuc)	4963	Not apparent

[2] As recorded on the receipts.

[3] Presumably debit or EFTPOS.

Adverse information invitation

1. In a letter dated 13 March 2018 the Department invited the applicant to comment on adverse information which included the following:

   a.    the applicant’s sponsor for the Medical Treatment visas she applied for on 11 October 2013 and 18 December 2014[4] was her granddaughter, Nguyen Ngoc Diem;

   b.    the applicant had provided evidence of bank funds in the amount of VND300,140,000 (approximately AUD17,126)[5] and evidence of property ownership in support of the first Medical Treatment visa application;

   c.     the applicant submitted a statutory declaration from Doan The Phu, Nguyen Ngoc Diem’s partner, in connection with the second Medical Treatment visa application in which he stated he would provide accommodation and cover her expenses in Australia; and  

   d.    on 9 March 2016 the applicant provided evidence of bank funds of VND150,000,000 (approximately AUD8,557)[6] as at 5 January 2016.

   [4] The Medical Treatment Visa applications are not before the Tribunal however the applicant provided a copy of the completed Medical Treatment Visa application form she lodged on 18 December 2014.

   [5] The estimate in Australian dollars was provided by the applicant on p.4 of the statutory declaration she made on 5 April 2018 in response to the invitation.

   [6] The estimate in Australian dollars was provided by the applicant on p.4 of the statutory declaration she made on 5 April 2018 in response to the invitation.

2. In response to the invitation the applicant provided a statutory declaration she made on 5 April 2018 in which she stated:

   a.    Nguyen Ngoc Diem had been her sponsor for her two Medical Treatment visa applications;

   b.    the first Medical Treatment visa application was made more than three years before her current visa application and at that time the sponsor had a 19-month-old, and the government had compensated her AUD17,126 for acquiring her property;

   c.     the sponsor had a two-year-old and four-year-old at the time of her second Medical Treatment visa application;

   d.    Doan The Phu was the sponsor’s partner and hence the support he offered to provide was provided by the sponsor’s family;

   e.    regarding the VND150,000,000 funds - the sponsor spent VND600,000,000 (about AUD36,000)[7] to rebuild her house, the sponsor took a small part of the government compensation and gave her VND140,000,000 (AUD7,987) for her daily expenses; and

   f.   the sponsor had financially supported her for a long time and not just three years before her current visa application.

   [7] The AUD figure was provided later in ‘Responses to Questionnaire for Aged Dependent Relative’ dated 12 September 2018.

3. The applicant included a copy of a photograph she said showed her in front of the new house the sponsor had funded. 

   Request for further information

4. On 17 August 2018 the Department asked the applicant to provide further information including a completed Aged Dependent Relative Questionnaire (ADR Questionnaire).

5. In response the applicant provided documents which included the following:

   a.    her responses to the ADR Questionnaire in the form of a document titled ‘Responses to Questionnaire for Aged Dependent Relative’ (dated 12 September 2018);

   b.    statements from her three children in Vietnam;

   c.     a statutory declaration from the sponsor made on 12 September 2018;

   d.    a document issued by the People’s Committee of Quon Long commune on 30 August 2018 stating that the applicant had no pension or government benefits from the Vietnamese government; and

   e.    an email from Bao Khoa Tien Giang Construction, Design and Consultancy Pty Ltd (the Bao Khoa company).

6. In the ‘Responses to Questionnaire for Aged Dependent Relative’, the applicant stated that:

   a.    although she owned the newly built house, the sponsor had provided her with shelter because she had financed most of the cost of the build;

   b.    the sponsor had given her about VND5,000,000 or about AUD300-400 in cash when she visited in 2011 and 2014 and when her stepmother travelled to Vietnam;

   c.     she had not had any income since she retired in 2003 including no pension, superannuation, life insurance, or ‘bank interests’; and

   d.    she had been wholly dependent on the sponsor for all her basic needs including food, clothing and shelter.

7. In their statements, the applicant’s children stated that they were unable to financially support the applicant due to their circumstances and she had been financially supported by the sponsor since the death of the applicant’s eldest son in 2009.

8. According to the sponsor’s statutory declaration, her yearly income was about AUD66,111 and consisted of the salary she received for working part-time in a post office, government Family Tax Benefit payments, government parenting payments, and child support payments. She also had a bank account with a balance of AUD45,837.21. A copy of a letter from the Commonwealth Bank dated 10 September 2018 stated that the balance of an account in her name was AUD45,837.21 credit.

9. The email from the Bao Khoa company was sent to the sponsor on 13 February 2015 with attachments titled ‘Report on Building Materials for Loan’s property’ and ‘Ms Loan – Qong Long’. The email indicates the company’s director is an engineer named Tran Quang Bao.

   The delegate’s decision

10. The applicant submitted a copy of the delegate’s decision record with her review application. The decision record included the following observations by the delegate:

    a.    there was no evidence about when the applicant’s house was cleared, the extent of her property ownership, when the applicant moved into her new home, where she lived while her new residence was being built, the total building costs or what proportion of the costs the applicant had paid herself;

    b.    no evidence had been provided that the sponsor was the sole source of the cash sent to the applicant’s builder via two money transfers and not a collective contribution by the applicant’s family in Australia;

    c.     the 12 other money transfer receipts which identified the sponsor as the sender was not sufficient to demonstrate that the source of the money sent was the sponsor’s personal funds and most of the transfers were made using cash payments;

    d.    in the absence of evidence such as the sponsor’s bank statement showing corresponding withdrawals or EFTPOS transactions at the time of the money transfers, the possibility that the sponsor had organised the money transfers using money provided by other family members in Australia could not be discounted; and

    e.    in connection with previous visa applications the applicant had provided evidence in October 2013 and January 2015 of bank funds of VND300,140,000 and VND150,000,000 respectively but had not provided bank statements for any accounts she had in the three years preceding her current visa application as requested in the ADR Questionnaire.

    Tribunal’s request for information

11. On 5 October 2020 the Tribunal asked the applicant to provide, if relevant, any information and evidence including medical evidence which showed she was wholly or substantially reliant on an Australian relative for financial support due to the total or partial loss of her bodily or mental functions. Additional documents submitted in response to the invitation included:

    a.    a statement made by the applicant on 28 October 2020 in which she responded to issues raised in the delegate’s decision;

    b.    a copy of a decision made by the People’s Committee of Cho Gao district on 24 December 2013 which stated that land issued to the applicant’s household in 1997 would be acquired for the purpose of upgrading a canal route; and

    c.     a copy of a decision made by the People’s Committee of Cho Gao district on 8 January 2014 to compensate the applicant in the amount of VND260,105,800 for the acquired land.  

12. In the statement, the applicant said she was informed in November 2013 that her property would be acquired by the government, she moved into her new house in early 2015, and she lived in a tent attached to the wall of her neighbour’s house while waiting for her new house to be built. She said the house was paid for in part using the government compensation and in part by the sponsor. The applicant stated she had already submitted details about the cost of the house to the Department. In relation to the statements made by the delegate that the funds for the money transfers were in cash and there was no evidence that the sponsor alone and no other family members were sources of the cash for the money transfers, the applicant asked the Tribunal to consider the following:

    a.    Money transfer agencies must comply with legislation. These agencies have a large number of Vietnamese customers. It is common practice for agencies to receive cash, issue receipts to comply with the law and contact their agencies in Vietnam to transfer funds to the receiver.

    b.    The receipts issued by the agencies state that the sponsor was the sender of the money.

    c.     The applicant’s two other grandchildren, Nguyen Ngoc and Nguyen Hieu Nghia, are not able to support her financially.

    Tribunal hearing

13. The Tribunal hearing was held on 17 August 2021. The Tribunal exercised its discretion to hold the hearing by MS Teams video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, 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 video. The sponsor was present throughout the hearing to assist the applicant with the technology used to conduct the hearing. No concerns were raised by the applicant or her migration agent in relation to holding a video hearing other than that the applicant would have to sit close to the computer to hear. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

14. New and relevant evidence given by the applicant and the sponsor at the hearing is referred to in the consideration of the claims and evidence below. In his oral submissions, the migration agent largely reiterated evidence and submissions which had already been presented.

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

15. 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 reg 1.03 of the Regulations as follows:

    aged dependent relativein relation to a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means a relative who:

    (a)   does not have a spouse or de facto partner; and

    (b)   has been dependent on that person for a reasonable period, and remains so dependent; and

    (c)  is old enough to be granted an age pension under the Social Security Act 1991. 

    Is the applicant a ‘relative’ of an ‘Australian Relative’?

16. ‘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).

17. Submitted in support of the visa application were copies of the applicant’s birth certificate, her eldest son’s birth certificate, the sponsor’s birth certificate, the sponsor’s Australian passport and the sponsor’s Australian citizenship certificate.  Based on those documents the Tribunal finds that the sponsor, is an Australian citizen and the applicant’s granddaughter.

18. The Tribunal thus finds that the applicant is a ‘relative’ of an Australian relative for the purposes of cl 838.212.

    Does the applicant have a spouse or de facto partner?

19. The applicant claims her husband, Van Xuong Nguyen, died on 1 February 1970. A copy of his death certificate was included in the visa application. At the hearing the applicant stated that she had neither remarried nor been in a de facto relationship since her husband died. On the evidence before it the Tribunal finds at the time of the application the applicant did not have a spouse or de facto partner.

1. Therefore, subparagraph (a) of the definition of ‘aged dependent relative’ is met at the time of application.

   Is the applicant dependent on the Australian relative?

2. 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). 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].

3. 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]. Departmental policy guidelines interpret a ‘reasonable period’ as being three years, or a lesser period if otherwise satisfied that the applicant has received ongoing support from the Australian relative.[8] However, this interpretation is difficult to reconcile with the Departmental guidelines on reg 1.05A which state that a ‘substantial period’ for the purpose of assessing reg 1.05A is a period of ‘at least 12 months’.[9] This is particularly so in light of the finding in Huang v MIMIA that the term ‘substantial period’ in reg 1.05A is to be read down to mean a period not more substantial than a ‘reasonable period’.[10] Accordingly, whilst Departmental policy guidelines offer one interpretation of the term ‘reasonable period’, the Tribunal must exercise caution in adopting this interpretation without considering whether it is appropriate in any individual case.

   [8] PAM3 - > Migration Regulations - Divisions > Div 1.2 - Interpretation > Reg 1.03 - Aged dependent relative (01/07/2016 compilation) at [5.4].

   [9] PAM3 - Migration Act > Act- defined terms instructions -s5G -s5G - Relationships and family members - Dependent family members 01/07/2016 compilation) at [42.2].

   [10] Huang v MIMIA [2007] FMCA 720 at [47].

4. Given the applicant claims she has been wholly financially reliant on the sponsor to meet her basic needs for food, clothing and shelter since 2009 and that the sponsor largely paid for the cost of rebuilding her house, the Tribunal considers a reasonable period of time immediately prior to the time of application in this case to begin on 24 December 2014 when the applicant was formally advised that part of the land on which her house was located would be recovered by the government.

5. At the hearing the applicant claimed the land on which her house was situated was recovered by the government after the land collapsed and caused damage to half of her house. The Tribunal accepts on the basis of the decisions made by the People’s Committee of Cho Gao district on 24 December 2013 and 8 January 2014 that 124m² of land which had been issued to the applicant’s household was recovered and the applicant was compensated VND260,105,800 for the recovered land. However, for the following reasons, the Tribunal is not satisfied that the applicant was dependent on her Australian relative for a reasonable period of time within the meaning of reg 1.05A at the time of application.

6. Firstly, the Tribunal is not satisfied that the sponsor largely paid for the applicant’s house to be rebuilt. The applicant has not been consistent about how the VND800,000,000 cost of the rebuild was paid. At the hearing the applicant stated that the sponsor contributed VND600,000,000 and the rest came from the government compensation. However, the applicant stated in her written evidence that the sponsor contributed VND600,000,000 towards the cost of the rebuild, and that the sponsor gave her VND140,000,000 of the compensation money for her daily expenses and took the remainder of the compensation money.[11] Thus, even if the remainder of the compensation money which the sponsor took, VND120,105,800, was put towards the cost of the rebuild that leaves VND79,894,200 of the cost unaccounted for. When the Tribunal queried this at the hearing, the applicant restated that the cost of the rebuild was paid using VND600,000,000 from the sponsor and the rest from the compensation. That does not explain the discrepancy between the applicant’s oral and written evidence.

   [11] Statutory declaration, 5 April 2018, p.4.

7. Secondly, the applicant’s written and oral evidence about how the builder was paid to rebuild her house varied and the amounts of money she claims the sponsor contributed to the cost of the rebuild do not add up to the total amount she claims the sponsor contributed. The applicant stated in her written evidence that the sponsor paid VND600,000,000 toward the build via two money transfers totalling AUD9,731.80 sent to the builder and cash which the sponsor brought with her to Vietnam in 2014.[12] The two money transfer receipts indicate that the AUD9,731.80 amounted to VND62,500,000. According to the applicant’s response to the ADR Questionnaire, the total amount of cash the sponsor gave her when she visited in 2011 and 2014 and through her mother/ stepmother was about VND5,000,000. Thus, even if all the cash the sponsor and her mother/stepmother gave the applicant on their trips to Vietnam is taken into account, that would make VND67,500,000 the total amount the sponsor contributed to the build which is well short of the claimed VND600,000,000. At the hearing the applicant indicated that she also paid for some building costs from the other money transfers the sponsor had sent. However, even the total of the other money transfers would not bring the amount of money contributed by the sponsor to VND600,000,000. When the Tribunal raised this with the applicant at the hearing, she said there was no other source of funds for the build. Ultimately, the evidence presented does not show that the sponsor contributed the claimed VND600,000,000 towards the build as the applicant claims.

   [12] Statutory declaration, 8 May 2017, p.2

8. Thirdly, neither the money transfers nor the email from the Bao Khoa company indicates that the money transfers were used to pay for the applicant’s house to be rebuilt. The photograph purportedly showing the applicant in front of a house is not prima facie evidence that the house pictured is the applicant’s rebuilt house or that the money sent to Mr Bao was used to rebuild her house.

9. Fourthly, the applicant has not provided evidence such as bank records or any other documentary evidence to indicate that she used the money she received via money transfers from the sponsor to meet her basic needs. When the Tribunal questioned the applicant about this at the hearing, she said she received the money in cash and the money was spent on building her house and to buy things inside the house. The Tribunal noted that nevertheless it seemed the applicant had a bank account as she had previously provided evidence that she had a significant balance of VND150,000,000 in a bank account. The applicant responded that was long ago and she had not used it. The evidence before the Tribunal indicates that the applicant provided evidence of those bank funds in March 2016, a little over a year before she applied for the current visa application. Despite claiming she had been financially supported by the sponsor since 2009, the applicant has not provided documentary evidence or bank records to demonstrate her expenses or financial circumstances despite having a bank account within a reasonable period of applying for her current visa, the ADR Questionnaire requested that she provided bank statements for any accounts she had, and the lack of such evidence was part of the delegate’s reasoning in refusing her the visa. This indicates to the Tribunal that the applicant has intentionally withheld full disclosure of her financial circumstances and raises doubts about whether she has been entirely truthful about her financial circumstances and reliance on the sponsor.

10. Fifthly and significantly, readily available documentary evidence has not been provided to demonstrate that the sponsor was the sole source of the funds used to pay for the money transfers as claimed or the substantial source. None of the financial records submitted in relation to the sponsor’s income or bank records show that any of the cash, EFTPOS payment or debits used to make the money transfers were drawn from her bank accounts. This is even though the ADR Questionnaire asked the applicant to provide such evidence and the lack of such evidence was part of the delegate’s reasons for refusing the visa. Asked at the hearing why such evidence had not been provided neither the applicant nor the sponsor offered an explanation. The applicant’s migration agent stated that Vietnamese Australians commonly use cash for money transfers, money transfer agencies must accurately record the name of the sender on receipts and the sponsor is the sender on all the money transfer receipts submitted. Even if it is common practice in the Vietnamese community to pay for money transfers by cash and even though the sponsor is recorded as the sender on all 14 money transfers receipts, that does not indicate the extent to which the sponsor was the source of the funds used to pay for the money transfers. As the Tribunal noted at the hearing and the delegate noted in their decision record, bank statements showing a correlation between withdrawals or debits from the sponsor’s bank account and the money transfers would provide evidence that she was the sole or substantial source of the funds. The fact such evidence has not been provided despite it being requested by the Department and being a reason the delegate refused the visa, and the applicant has four other adult grandchildren in Australia who could be the source of financial support raises significant doubts that the sponsor was the sole source of the funds used to pay for the money transfers as claimed or the extent to which she contributed funds to the money transfers.

11. In light of the above, the Tribunal is not satisfied that the applicant has been financially dependent on the sponsor as she claims. Specifically, the Tribunal is not satisfied that for a substantial period immediately prior to the time of application, the applicant was wholly or substantially reliant on the sponsor for financial support to meet her basic needs for food, clothing and shelter, and that her reliance on the sponsor was greater than her reliance on any other person or source of support. In reaching this conclusion, the Tribunal has had regard to the period between the applicant’s arrival in Australia and when she applied for the visa during which it is claimed the applicant lived with and was financially supported by the sponsor for her basic needs. There is documentary evidence that the applicant and the sponsor have resided at the same address in Australia and hence it is not implausible that the sponsor has financially supported the applicant to meet her needs for clothing and food during that time in addition to providing her with shelter. However, the Tribunal does not regard the two months between the applicant’s arrival in Australia and the time of application to be a reasonable period of time.

12. Finally, in the Tribunal letter of 5 October 2020 and at the hearing the applicant was given the opportunity to provide relevant information and evidence about her reliance on the sponsor for financial support due to her incapacity to work because of a total or partial loss of her bodily or mental functions. No evidence of the applicant’s incapacity was provided in response to the Tribunal’s request. At the hearing the applicant stated that she was of advanced age, her thinking capacity was low, and she was forgetful. No medical evidence of diminished functioning has been provided. In the absence of relevant medical evidence and in light of the above issues identified regarding the sponsor’s claimed financial support, the Tribunal is not satisfied that at the time of application the applicant was wholly or substantially reliant on the sponsor for financial support because she was incapacitated for work due to the total or partial loss of her bodily or mental functions.

13. For the above reasons, subparagraph (b) of the definition of ‘aged dependent relative’ is not met at the time of application. Hence the applicant is not the aged dependent relative of an Australian relative at the time of application for the purposes of cl 838.212.

    Conclusions

14. As cl 838.212 has not been met the Tribunal finds that the applicant does not meet the criteria for a Subclass 838 visa.

15. 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.

16. There is no evidence before the Tribunal that at the time of application the applicant claimed to be a carer of an Australian relative, as required by cl.836.212, nor that the application was accompanied by satisfactory evidence that the relevant medical assessment has been sought, as required by Item 1123B(3)(d) of Schedule 1 to the Regulations. The applicant is therefore not entitled to the grant of a Subclass 836 (Carer) visa.

17. Further, the Tribunal finds that the applicant is not entitled to the grant of Subclass 835 (Remaining Relative) visa as the applicant’s near relatives, as defined in r.1.15(2), reside in the same country as the applicant, namely, the applicant’s three children in Vietnam. As such, the applicant is not a ‘remaining relative’ of the ‘Australian Relative’ and therefore is unable to meet cl.835.212.

    DECISION

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

    Mila Foster
    Member