Fetaile (Migration)

[2019] AATA 3806

Fetaile (Migration) [2019] AATA 3806 (13 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Khaldie Fetaile

CASE NUMBER:  1725132

DIBP REFERENCE(S):  CLF2016/16265

MEMBER:Angela Cranston

DATE:13 August 2019

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 13 August 2019 at 11:51am

CATCHWORDS

MIGRATION ­– Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – definition of ‘aged dependent relative’ is not met – not meeting the relevant definition of dependence – applicant was not “wholly or even substantially” reliant on her son – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.05 Schedule 2, cls 838.111, 838.212, 838.221,

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 Immigration on 3 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 applied for the visa on 14 March 2016. 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 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). Relevantly to this matter, the primary criteria to be met include cl.838.212.

3.    In her application, the applicant stated she was born on 10 April 1947, was widowed, had arrived in Australia on 26 December 2015 and was sponsored by her son Maarouf Alameddine who arrived in Australia on 11 February 1996. Also provided was a certificate of death for her husband, Abdulrahim Alameddine.

4.    The applicant also stated that she had 8 children, four of whom were in Australia and four of whom were in Lebanon. 

5.    On 7 March 2016 the applicant’s son, Maarouf Alameddine provided the following letter:

My mother entered Australia and after the death of my father she became lonely in Lebanon and here in Australia she feels more comfortable among her four Australian children and grandchildren.

My mother has been dependent on me since I migrated to Australia in 1996. I have always and since that date worked very hard to support my parents who have been dependent on me financially and emotionally.

My late father and mother previously visited Australia and I always covered the travelling costs and always spent money on them regularly because my siblings in Lebanon were unable to support my parents. I draw your kind attention to the many trips I made to Lebanon during which travel I took money with me to spend on my parents and I list the following trips for the departments information and confirmed that my parents were totally dependent on me especially after my father got sick. I travelled to Lebanon on 15/5/2009 and returned 27/6/2009 during this trip I fixed their home and left money with them.

From 8/9/2010 to 19/11/2010 I visited them and spent money on them purchasing food and furniture.

From 14/5/2011 to 25/6/2011 my father was in Australia. I took him back to Lebanon because he was very sick.

From 23/11/2012 to 1/2/2013 took my family to see my parents. I also spent money on my parents.

From 21/1/2014 to 28/2/2014 I went to Lebanon to visit my ill father who was admitted to hospital and left money for my mother to look after him.

From 29/11/2014 to 1/2/2015 went back to Lebanon to treat my father.

From 15/9/2015 to 17/10/2015 my father passed away in September 2015 and I spent money on the funeral as well as paid debts to the shops where my mother purchased food.

My mother was and continues to be dependent on me emotionally, physically and financially. My mother is a very simple woman. She raised 8 children and now she is weak and she continues to need my support.

I attach some photos which show my parents in Australia and in Lebanon. The relationship between my mother and I is so strong and I am willing to continue supporting her totally.

6.    The applicant also provided a statutory declaration that was essentially in the same words.

7.    The Department found the applicant did not meet cl.838.212.

8.    The applicant applied for review. Mr Maarouf Alameddine (the sponsor) provided a statement that said that since her arrival in Australia, the applicant had been living with he and his family, had her own room, that food was always available and there was no difference between the applicant and his family, they shared everything.

9.    The applicant appeared before the Tribunal on 24 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Maarouf Alameddine and Mr Hayssam Alameddine and submissions from Ms Rayanne Alameddine.

1. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant confirmed that she understood what had been said once it had been interpreted to her.

2. The applicant stated she was 75 and that since 1996 she had been supported by Maarouf.  She stated that currently she was living with him and he bought her food and clothes.

3. The applicant stated she came to Australia in December four years ago. Her husband passed away in September 2015. She stated the house where she used to live belonged to her parents-in-law. She stated she now stayed with Maarouf and would sometimes stay overnight with Hayssam. She also stated Maarouf gave her everything.

4. The applicant stated she had two daughters and two sons in Australia and four daughters in Lebanon. She stated one of her daughters was in Tripoli and the others were in Elminieh but not with her. In Lebanon she lived in Elminieh with her husband in her in-laws house. After her husband died she could not stay there and came to Australia and Maarouf supported her. Her husband was 75 when he passed away. She stated his family owned a lemon farm where he worked until his children came to Australia more than 10 years ago. She stated he was ill for a long time and Maarouf paid for his hospital fees.  

5. The applicant stated that in Lebanon her expenses were medication, food and clothing. She then stated it was all from Maarouf. When asked how much she would spend on food each year she did not know but spent whatever her children sent, that is what ever Maarouf, Hayssam and her daughter sent money for Eid and religious occasions but Maarouf supported her.

6. When asked how much Maarouf gave her in Lebanon, she stated he sent her money depending on medication and doctors.

7. The Tribunal talked about her August 2016 statement and put to her that it said that over a 10 year period Maarouf sent $10,500. She stated she spent that on medication and the doctors. She also stated her son had written the statement but she had signed it. She also said it was true but she had forgotten.

8. The applicant stated that her two sons paid for her trips to Australia. The Tribunal put to her that in one of her tourist visa applications she said Salam, her daughter would support her when she was in Australia. She stated she was living with Maarouf. When asked if all her children were looking after her she said yes but Maarouf looked after her the most.

9. The Tribunal then spoke to Maarouf who said he wanted the applicant to live with him in Australia. He stated she was staying with them and eating and drinking what they offered. He stated she was much loved.

10. Maarouf stated he was looking for work and had last worked in paid employment in 2011.

11. The Tribunal talked about the applicant’s statutory declaration and asked about the money that Maarouf had sent over a 10 year period. When asked about how the declaration was written he stated he was responsible for the declaration’s information, that he was in conversation with the applicant and the statement was about things that had happened to them. He stated he sent $10,500 to pay for food and water and for when his father was ill. When asked if he paid more, he stated he gave $100 gifts for mother’s day and feasts.

12. When asked who paid for the applicant’s trips to Australia he stated he paid but his brother helped a bit. The Tribunal put to him that in a visa application dated 7 May 2013 it stated that Salam would support the applicant and provide accommodation. He stated his sister brought the applicant to Australia once before. The Tribunal also put to him that in one of her documents the applicant had said that she was totally dependent on her Australian children. He stated the applicant was dependent mainly on him, but Salam might take her for a day or night and would then return her.

13. Maarouf stated that the translator’s Arabic was different. The Tribunal put to Maarouf that he needed to identify when he did not understand something.

14. The Tribunal put to Maarouf that it understood that groceries in Lebanon were 34% lower than in Australia. He stated not everything but roughly. The Tribunal put to him that if that was the case than AUD$10,500 over 10 years would not go very far. He stated before his father died his father used to work on the farm and Maarouf was trying to help them as much as he could. The Tribunal put to Maarouf the test was whether now and for a substantial period immediately before the visa application on 4 March 2016 the applicant was wholly or substantially reliant on him for financial support to meet her basic needs for food, clothing and shelter and her reliance on him was greater than her reliance on any other person or source of support to meet her basic needs for food clothing and shelter. Maarouf stated he was her eldest son and was responsible for her welfare. He stated his siblings were unable to help her as much as he could as he had his own place.

15. The Tribunal spoke to Ms Rayanne Alameddine who also supplied statements from the applicant’s daughters, Badiaa and Salam Alameddine who both stated they could not financially support the applicant and that she was dependent on Maarouf. Ms Rayanne Alameddine also stated that the applicant was reliant on Maarouf since 1996.

16. Mr Hayssam stated he wanted his mother to remain in Australia.  He also said the applicant did not understand the interpreter. 

17. Following the hearing, the Tribunal wrote to the applicant as follows:

    In your tourist visa application dated 9 December 2015, you state that you will maintain yourself financially while in Australia from your cash savings and your
    children in Australia will support you too.
    This is relevant because the Tribunal may find that there is evidence that all of your children support you. If the Tribunal finds this, then subject to your comments it would not be satisfied that at the time of application on 14 March 2016 and for a substantial period immediately before that time you were wholly or substantially reliant on your son, Mr Maarouf Alameddine for financial support to meet your basic needs for food, clothing and shelter; and that your reliance on him was greater than your reliance on any other person, or source of support, for financial support to meet your basic needs for food, clothing and shelter.

    If the Tribunal finds this, then subject to your comments it would affirm the decision under review.

18. The Tribunal received statutory declarations from Rayanne Alameedine acting as a scribe for the applicant:

    The visa application submitted on 9 December 2015 stated that I will maintain myself financially through my cash savings is accurate. The cash savings were funded and supported by my son Maarouf. As for the second half of the comment “and my children in Australia” was not clarified by the agent, dictating that I am wholly dependent on my son Maarouf. According to the records I have four children here in Australia therefore it is only common to perceive that they will support me however that is not the case, whilst all my children are loving, they do not and have not supported me the way my son Maarouf has financially supported me for years for my basic needs such as clean water, food, clothing and shelter.

    Traditionally in Lebanese culture the eldest son is responsible for his parents in which Maarouf is doing. Maarouf has gone above and beyond for me and his late father, more than I can even imagine. He supported us when his father was alive and is continuously supporting me even after his father has passed. I stay permanently with Maarouf where he has given me my own bedroom and furnished it with a bed, curtains, wardrobe, pillows, blankets and my own clothes. I also have my own bathroom and the kitchen is just to the left of my room which is always full with food and drinks. My other children are great but is nowhere equivalent to what Maarouf has done for me as they are unable to. I truly wish everyone has a son like mine because he is a miracle.

    When I was in Lebanon my other children in Australia, Hayssan, Badiaa and Salam would send me $50 on Eid, but that was it. Since I have been here in Australia they still give me $50 on Eid and Mother’s Day and take me out for the day, where I sometimes sleep over for one night but that is it.

    In addition the term substantially is defined as greater than or in a large degree, furthermore the application guidelines directly and distinctly indicate in regulation 1.05(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person or source of support for financial support to meet the first personal basic needs for food, clothing and shelter. In other words I am reliant on my son, Maarouf more than anyone else in this world to support me for my basic human needs. Therefore if my children in Australia give me $100 each/yearly then I am unable to rely on them or even be supported by them for my basic human needs. That is why I stress and repeat you that my son Maarouf Alameddine, my eldest son, is who I am dependent on for my basic needs such as clean water to drink, food not to starve, shelter to protect myself, clothing and blankets to keep conservative and warm.

    Lastly during the hearing we submitted to the Member two documents signed and written by my children Salam and Badiaa, indicating they are unable to support me financially.

Country Information

1. According to Numbeo accessed22 July 2019 and again on 7 August 2019, the cost of groceries prices in Lebanon are 34.87% lower than in Australia. 

2. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

Preliminary issue

1. Although not raised by the applicant herself, the applicant’s son, Hayssam who did not observe the hearing stated that the applicant may not have understood what the Tribunal was saying once it had been interpreted to her because the interpreter spoke in an Iraqi Arabic as opposed to the Arabic spoken in Lebanon.

2. While the Tribunal has considered the applicant’s sons comments, the applicant herself confirmed at the beginning of the hearing that she understood what had been said once it had been interpreted and did not raise this as an issue even though instructed to do so if she failed to understand what the Tribunal had said once it had been interpreted to her. In addition, it was the Tribunal’s observations at hearing that although the applicant provided voluminous oral testimony, her considered answers to its questions suggested she did understand.  Given this, the Tribunal considers the applicant understood the issues arising in relation to the review and was given a fair opportunity to provide evidence and present arguments in relation thereto.

Substantive issue

1. The visa application was made on the basis that the applicant is the aged dependent relative of Maarouf, who the applicant claims is her son. Relative is also defined in r.1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or niece or nephew (or their step equivalents).

2. In this case the Tribunal accepts that Maarouf Alameddine is an Australian citizen and is the applicant’s son. In this case, the applicant is the ‘relative’ of an Australian relative for the purposes of cl.838.212.

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

1. 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.

2. 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.

Does the applicant have a spouse or de facto partner?

1. The Tribunal accepts that at the time of application, the applicant did not have a spouse or de facto partner.

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

1. 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. Different age qualifications apply for men and women and depend upon the date of the applicant’s birth. According to the Social Security guide see ( women born in 1947 (like the applicant) can obtain the pension when they are aged 64 years or in 2011. Accordingly, at the time of application in 2016, the Tribunal is satisfied that she was old enough to be granted an aged pension under the Social Security Act 1991.

Is the applicant dependent on the Australian relative?

1. 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).

2. 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].

3. There is no evidence before the Tribunal to suggest that the applicant is wholly or substantially reliant on Maarouf for financial support because she is incapacitated for work due to the total or partial loss of her bodily or mental functions (reg 1.05A(1)(b). Accordingly, the applicant must meet reg. 1.05A(1)(a).

41.   The Tribunal accepts that the applicant has been living with Maarouf since she arrived in Australia on 26 December 2015. Even though it appears that Maarouf’s siblings have also been supporting the applicant while she has been in Australia, the Tribunal is prepared to accept that since she has been in Australia, the applicant has been substantially reliant on Maarouf for financial support to meet her current basic needs for food, clothing and shelter. 

1. However, in order to meet reg 1.05A(1(a) the applicant must also must be, at the time of visa application on 14 March 2016, and must have been for a substantial period immediately before that time, “wholly or substantially” reliant on Maarouf for financial support for her basic needs for food, clothing and shelter and her reliance on that person, Maarouf must be greater than her reliance on any other person, or source of support for financial support to meet her basic needs for food, clothing and shelter. The Tribunal is mindful that Departmental guidelines (PAM3) interpret a 'reasonable period' in this context as being three years, or a lesser period if otherwise satisfied that the applicant has received ongoing support from the Australian relative. Elsewhere in PAM3, Departmental guidelines on r.1.05A state that a substantial period for the purpose of assessing dependency in r.1.05A is a period of 'at least 12 months'. In light of this contradiction, and considering the approach referred to in Huang, above, the Tribunal considers in the present case that 12 months prior to the application is a substantial period that is reasonable in the circumstances.

2. Given that the applicant was living in Lebanon less than 12 weeks before her visa application, the Tribunal finds that it must also look at whether she was wholly or substantially” reliant on Maarouf for financial support to meet her basic needs for food, clothing and shelter and whether her reliance on Maarouf was greater than her reliance on any other person, or source of support for financial support to meet her basic needs for food, clothing and shelter for the last 9 months she was in Lebanon.

3. The parties have argued that the applicant is and has been dependent on Maarouf since Maarouf migrated to Australia in 1996. They have also argued that she was dependent on Maarouf for food and clothing. While the Tribunal has noted the parties’ evidence that Maarouf has provided a total of $AUD10 500 to the applicant and her husband over a ten year period before the applicant arrived in Australia on 26 December 2015 and that Maarouf also provided sums totalling $100 on special occasions such as Eid and other religious occasions, the Tribunal has also noted that the applicant’s shelter in Lebanon was provided by her husband’s family and that much of the money Maarouf sent was spent on the applicant husband’s medical bills before he died on 10 September 2015. In addition, given the evidence before the Tribunal that grocery prices in Lebanon are approximately 34% lower than in Australia, it is clear that the applicant (and her husband before he died) could not have relied upon Maarouf’s financial contribution when she was in Lebanon to meet her basic needs for food and clothing.

4. Accordingly, the Tribunal is not satisfied that for the 9 months before she came to Australia, the applicant was substantially reliant on Maarouf to meet her basic needs for food, clothing and shelter.

5. This means that while the Tribunal accepts that Maarouf made a contribution towards the applicant’s support, the Tribunal is not satisfied that for a substantial period immediately before 14 March 2016 that the applicant was “wholly or even substantially” reliant on Maarouf for financial support for her basic needs for food, clothing and shelter or that her reliance on Maarouf was greater than her reliance on any other person, or source of support for financial support to meet her basic needs for food, clothing and shelter.

6. For these reasons subparagraph (b) of the definition of ‘aged dependent relative’ is not met at the time of application.

7. The Tribunal has some sympathy for the applicant and her children who clearly love each other. However, for the reasons set out above, the Tribunal is not satisfied that the applicant is the aged dependent relative of an Australian relative at the time of application for the purposes of cl.838.212.

8. 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 (835 (remaining relative) and 836 (carer)) there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

DECISION

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

Angela Cranston
Member