Gadiane (Migration)

[2020] AATA 5393

Gadiane (Migration) [2020] AATA 5393 (20 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Trinidad Gadiane

CASE NUMBER:  1810644

DIBP REFERENCE(S):  CLF2017/5092

MEMBER:Helena Claringbold

DATE:20 December 2020

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 20 December 2020 at 11:17am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – dependent on sponsor for substantial period before decision – applicant’s salary and pension from home country insufficient – sponsor’s financial and other support for applicant and mother in home country and applicant in Australia – little independent evidence to support claims – decision under review affirmed

LEGISLATION

Migration Regulations 1994 (Cth), rr 1.03(b), 1.05A(1)(a), Schedule 2, cls 838.111, 838.212, 838.221

CASES

Huang v MIMIA [2007] FMCA 720

Huynh v MIMA [2006] FCAFC 122

Huynh v MIMIA (2006) 152 FCR 576

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 3 January 2017, Ms Trinidad Gadiane, the applicant applied for an, Other Family (Residence) (Class BU) visa. The application was made on the basis that she is an aged dependent relative of Ms Elvira Elnas Bruce, the sponsor.

2. On 27 March 2018, a delegate of the Minister for Immigration refused to grant the visa. The delegate was not satisfied the applicant falls within the definition of an aged dependent relative. Therefore, the applicant did not meet cl.838.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958. On 16 April 2018, the applicant provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision.

3. On 2 November 2020, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was adjourned due to difficulties with the interpreting services. A Tribunal hearing set down for 30 November 2020 was cancelled because of difficulties obtaining the services of an interpreter in the Cebuano and English languages.  On 1 December 2020, the applicant appeared before the Tribunal 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 Cebuano and English languages. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration, individually and completely, all the evidence in the Department of Immigration’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether, at the time of application, the applicant was the aged dependent relative of the sponsor.

   BACKGROUND ON THE EVIDENCE

7. The applicant was born in 1942 in Sampaloc, Manila, Philippines. Her parents and three siblings are deceased. Her other siblings are a brother who lives in the Philippines with his wife and children and the sponsor who lives in Australia. The applicant did not declare any partner relationships.

8. The sponsor was born in the Philippines. On 5 September 1991, she became an Australian citizen by grant.

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

9. To be granted a Subclass 838 visa the applicant must be an ‘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.

   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.

   …

   r.1.03(b) requires that at the time of application, the applicant must demonstrate she has been dependent on the sponsor for a reasonable period and remains dependent. 

10. The term ‘dependent’ is defined in r.1.05A. It requires that at the relevant time, and for a substantial period immediately before that time, the person who is claiming to be dependent (the ‘first person’) must be wholly or substantially reliant on the other person for financial support to meet their basic needs for food, clothing and shelter. Further, the first person’s reliance on the other person must be greater than their reliance on any other person or source of financial support to meet those basic needs: r.1.05A(1)(a)(i) and (ii). Alternatively, the first person must be wholly or substantially reliant on the other person for financial support because they are incapacitated for work due to the total or partial loss of their bodily or mental functions: r.1.05A(1)(b).

11. Relevantly, the terms of r.1.05A(1) do not carry with them any implication of necessity or lack of choice. 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 MIMA [2006] FCAFC 122 at [44]. The question is whether as a matter of fact, the first person is relying on the other person for support: Huynh v MIMIA (2006) 152 FCR 576 at [43].

12. Although the Tribunal is not bound by policy, the Procedures Advice Manual 3 (PAM 3), the Tribunal understands that the delegate interpreted a ‘reasonable period’ immediately prior to the applicant’s visa application to be a three-year period (as per Departmental guidelines (PAM3)).  The Tribunal recognises that this is one interpretation of the term ‘substantial period’ but also notes the decision of the Full Court in Huang v MIMIA [2007] FMCA 720 at [47] and its interpretation of a ‘substantial period’ of being not more substantial than a ‘reasonable period.’

13. The applicant in this case retired as a schoolteacher in 2007 and received a lump sum retirement payment.  In 2012, she began receiving a pension which continued for five years. Prior to January 2014, the applicant lived in the Philippines for most of her adult life and Mrs Gadiane (Ms Gadiane’s and Ms Bruce’s mother) lived with her.  During the period 3 January 2014 to 3 January 2017, Ms Gadiane lived in the Philippines for 554 days and she lived with Ms Bruce in Australia for 542 days. Therefore, the Tribunal considers a ‘reasonable period’ to be from 3 January 2014 to the time of application 3 January 2017.

    CLAIMS AND FINDINGS

14. There is no information before the Tribunal to suggest that the applicant is not the sister of the sponsor.

15. There is no evidence before the Tribunal that the applicant is incapacitated for work due to the total or partial loss of her bodily or mental function. Therefore, the visa applicant does not meet subparagraph (1)(b)(ii) of the definition of dependent.

16. Ms Gadiane asserts that she has been and is dependent on Ms Bruce. She claims that the pension she received was not substantial enough after expenses and she was dependent on Ms Bruce to meet her basic needs of food, clothing and shelter.  She maintains that Ms Bruce previously sent money to a joint bank account Ms Gadiane held with Mrs Gadiane (the joint bank account) and that money supported the household.

17. The delegate’s decision record provides the following information:

    ·In July 2014, the applicant applied for a visitor visa.  To support the visitor visa application, Ms Bruce provided information that Ms Gadiane owned her own home and land and was mortgage free in the Philippines.

    ·In October 2015, Mrs Gadiane, applied for an Aged Dependent Relative Subclass 838 visa. She was sponsored by Ms Bruce. To support Mrs Gadiane’s dependency on the sponsor, the joint bank statements were provided. The same joint bank statements were also provided in Ms Gadiane’s visa application.

    ·In a submission dated 27 October 2015, sent to the Department in support of Mrs Gadiane’s visa application it was stated ‘The sponsor has been sending money to Mrs Gadiane more than two decades and the money is administered by Ms Gadiane’.

    ·In a statement dated 17 December 2017 Ms Gadiane and Ms Bruce provided the following information. The joint bank account was opened at Ms Bruce’s request to enable the transfer of funds for the mutual financial benefit of Mrs Gadiane and Ms Gadiane. Ms Bruce has been sending money since 1989 and the bank statements provided are appropriate. The money was to subsidise mortgage payments especially when Ms Gadiane travelled to Sydney, when Ms Bruce covered all costs. The financial support provided was for Mrs Gadiane and Ms Gadiane’s living expenses including food, clothing, accommodation, housing repairs, medical and other financial obligations. 

    ·Mrs Gadiane and Ms Gadiane were forced to re-locate due to their (first) home being demolished. Ms Bruce found a suitable new location for them.  She viewed plans and house and land package lists (for the second home). Ms Gadiane as a teacher qualified for a government funded housing loan through salary deductions. The standard loan period is 25 years and a short- term loan required higher payments. The loan repayments caused a financial strain on Ms Gadiane, who received a teacher’s salary. Ms Bruce sent money to help with the loan repayments. Ms Gadiane took leave without pay when she travelled to Sydney and stayed in Sydney with Mrs Gadiane for six months each time. This resulted in Ms Gadiane missing mortgage repayments and accruing debt. Ms Bruce provided financial assistance to clear the accrued debt and contributed to the purchase of Ms Gadiane’s house and land (the second home) and she has a legal claim on them. The mortgage company have not released the property to Ms Gadiane.  She is not the registered owner of the property and she does not have a certificate of title. Since Ms Gadiane arrived in Sydney on 8 July 2016, she has been dependent on the sponsor for food, shelter and clothing, health insurance and other living expenses.  The sponsor’s husband passed away in September 2015 and her mother passed away in June 2016.

    ·On 18 October 2014, Ms Gadiane and Mrs Gadiane arrived in Sydney. On 17 April 2015, Ms Gadiane departed.  On 2 December 2015, she returned to Sydney.  On 1 June 2016, Ms Gadiane departed. On 8 July 2016, she returned to Sydney. During their stay in Sydney the sponsor provided them with food, clothing and accommodation and other expenses. She seeks grant of the visa on compassionate grounds.

18. Information provided in support of the visa application includes the following:

    ·Copies of the joint bank statements.  These record transactions from 22 June 2011 to 28 December 2012 and 11 October 2013 to 29 December 2014.  An external label (not belonging to the list of transactions) is stuck on to a page of the statements.  This has a typed notation declaring that Ms Bruce provided financial support to Ms Gadiane via door-to-door Courier Ruffy’s Sydney who deposited cash into Ms Gadiane’s bank account and the deposit entries (represent money) sent by Ms Bruce. The cash deposits on the statements do not have any identification about who made the deposits.

    ·A copy of two bank transactions. One transaction is a bank ATM record dated 15 October 2013. Another transaction is a cash deposit of $500 made to an account ending 5234. Various written notes are on the document including ‘Ruffy’s Exp’. The transactions are without any identification. A handwritten note, at the bottom of the page, stated that Ms Bruce deposited cash to Ruffy’s Express in Sydney for transfer to Ms Gadiane’s bank account.

    ·A copy of a document ‘Special Power of Attorney’ witnessed on 18 December 2017 at the Consulate General of the Philippines, Sydney. It recorded that Leo Ross Rendon, a citizen of the Philippines is to act on Ms Gadiane’s behalf in matters relating to obtaining her employment, salary and retirement records and to follow up on (the) house land package loan and release of property and to obtain documents from ‘other government agencies’ and to act in other legal matters.

    ·A letter from a general practitioner is dated December 2017.  It stated the following. Ms Bruce has been a patient for 20 years and suffers from reactive depression. Her husband died in 2015 and her mother died in June 2016. At that time Ms Gadiane who is her only sister came to Australia to be with the sponsor. The sponsor needs Ms Gadiane’s support.

    ·A receipt for a clothing store dated August 2016 paid by credit card ending 3848 for $69.85.

    ·A receipt for groceries dated October 2016 for $15.45 paid in cash. On the page is a handwritten note stating that Ms Bruce has provided financial support, accommodation and meals to the visa applicant. ‘Receipts will be forwarded if needed as dependent while living in Sydney’.

    ·Other information relates to airflights for Ms Gadiane and other ad hoc payments for medical and dental treatment, chemist purchases, office supplies, transport card for the sponsor and medical insurance cover.

19. In October 2020, the applicant’s migration agent provided the Tribunal with a submission that included the following information:

20. A statutory declaration from Ms Gadiane dated October 2020, which stated the following.

    In 1968 she was employed as a teacher and she helped her family in a small business and the education of her siblings. Her salary was her main income and she lived from one salary payment to the other. She relied on the sponsor, especially in emergencies to provide financial support. All deposits into the joint bank account she shared with Mrs Gadiane and were from Ms Bruce. Ms Bruce deposited money into Ruffy’s Express bank account. Their contact in the Philippines deposited into the joint bank account. Due to the Australian government’s policy on money laundering Ruffy’s Express ceased operation. In times of emergencies Ms Bruce also sent money through Manilla Sari Sari and Ruffy’s Express door to door service. Ms Bruce was advised by a friend that Ms Gadiane could apply for a housing loan and Ms Bruce would support the project. As Ms Gadiane was approaching retirement the loan repayment would be higher causing financial distress without the support of Ms Bruce. A housing loan was approved for PHP210,000 (to purchase the home and land). There were also additional costs for additional work on the house for which she incurred a debt of PHP80,000 from a lending creditor GA Alano. When she travelled to Sydney, she took leave without pay for six months at a time and fell in debt.  Ms Bruce cleared the debt ensuring that she and Mrs Gadiane did not lose their home.

    On 27 May 2007, she retired from teaching at the age of 65. As her retirement package she took she took a lump sum payment of P304,919.94 which was paid in June 2007 and a five-year pension. She paid the remaining balance of P94,917.60 which on 3 July 2007 fully paid the mortgage. In February 2011, the cash bank balance was P2,000 and renovations came to a halt. During the five-year post retirement period of no income Ms Bruce helped with their upkeep, house repairs and maintenance.

    In 2012, five years after retirement the monthly pension of P14,000 commenced. This was not enough to maintain and repair the house, pay for her mother’s health care and pay for their living costs. On 18 October 2014, she came to Sydney and stayed for six months. On 2 December 2015, she returned to Sydney and stayed for six months. On 8 July 2016, she returned to Sydney. On 3 January 2017, the application for the visa was lodged.

21. In a statutory declaration dated October 2020. Ms Bruce provided the same information as Ms Gadiane. In addition, she stated the following.

    The money she sent via Ruffy’s helped Ms Gadiane. The history of dependency in their household and in the Filipino communities has become normal tradition. Mrs Gadiane and Ms Gadiane lived together and the money she sent for Mrs Gadiane also supported Ms Gadiane. Ms Gadiane’s pension was not enough to pay for the maintenance and repairs of the house or for Mrs Gadiane’s health care costs. Ms Gadiane took a loan from 2012-2014 agreed to be payable when her pension commenced on 27 May 2012. She believes that she provided financial support to Ms Gadiane for her food, shelter and clothing.

22. In a statutory declaration dated October 2020, Ms Bruce provided the following information.

    Ms Gadiane mortgaged her monthly pension to GA Alano under pension loans. The first loan in October 2010 was for P30,000 with monthly repayments of P5447 over a six-month period. The second loan in February 2014 was for P30,000 with monthly repayment of P5447 over a six-month period. The third loan was for P15,000 with monthly repayments of P2724 over a six-month period. She provided three loan disclosure statements which support the loan and re-payment arrangements as detailed.

    Her monthly expenses were P265 for water, P332.54 for electricity, P332.54 telephone, P500 TV antenna, P150 VCH fee and P711,84 land tax. The balance left for groceries, medicine, house repairs were so tight that she depended on Ms Bruce for financial support. It was difficult to live on a shoe-string budget, especially when the healthcare for Mrs Gadiane was a primordial concern. The healthcare for Mrs Gadiane added financial strain on Ms Gadiane pension. In times of emergencies she had to borrow from GA Alano for medical and hospital bills. Ms Gadiane had no savings and relied on Ms Bruce to support Mrs Gadiane’s well-being, household expenses and essential basic needs of food, clothing and shelter which was in disrepair.

23. Other documents provided include the following:

    ·A Government Service Insurance System (GSIS) letter dated 9 August 2017.  ‘Certificate of full payment’. Certifies that a loan of PHP 210,000 was fully paid on 3 July 2007. Ms Gadiane declared that this is the housing loan.

    ·Various GSIS documents which Ms Gadiane declared being for the house loan payments.

    ·Selected pages of a joint bankbook account ending 0014, recording transactions from September 2014 to October 2015 with a closing balance of P49,976.75. These record various cash deposits and withdrawals.  The applicant claimed that these deposits represent monies being sent by the sponsor via Ruffy’s Express. There is no identification either of the person or entity making the deposits or the person making the withdrawals.

    ·Copies of pages of a bankbook in the applicant’s name account ending 972-4. These record various cash deposits and withdrawals between 2007 and 2010.  One deposit in June 2007 is for P304,919.94 and a withdrawal of P80,000.00 is made on the same date. There is no identification either of the person or entity making the deposits or the person making the withdrawals.

    ·Copies of bank statements for Ms Gadiane and Mrs Gadiane with customer number ending 0175, account number ending 0014. These record transactions from 22 June 2011 to 28 December 2012 and 1 October 2013 to 29 December 2014 with a balance of P20,182,65.  These record various cash deposits and withdrawals.  The applicant claimed that these deposits represent monies being sent by the sponsor via Ruffy’s Express. There is no identification either of the person or entity making the deposits or withdrawals.

    ·Copies of access savings statements in the sponsor’s name.  These record debits noted as to Ruffy’s Express as follows, 5 May 2014 for $559, 24 July (2014) $508, 25 August (2014) $510, 28 August (2014) $509.

    ·A document recording Ms Gadiane’s and Mrs Gadiane’s names is dated 16 October 2013 for a deposit of P 40,450 to savings regular passbook ending 0014.  There is no information on the document relating to Ruffy’s Express.

    ·Various other customer receipts are provided dated from 2009 to 2014, these contain various handwritten notes including ‘E Bruce sent money to AE Gadiane’ ‘E Bruce sent money to AE Gadiane via Ruffy’s express’, ‘Ruffy’s Express account number ending 5234’ ‘E Bruce withdraws for fund transfer to AE Gadiane via Ruffy’s Express’.  One deposit receipt dated 5 January 2009, is for the credit account name Ruffy’s Express, the amount being directed is over-stamped but appears to be $180.

    ·Copies of credit union debits noted for travel service and the Department. Other information relating to payments to the Department and for travel services.

    ·Copies of bank book ending 322-9 stamped 4 February 2005. Last recorded transaction 20 November 2009 with a balance of PHP2,000. This has various cash deposits, withdrawals and balances recorded.  The applicant claimed that this is her bank book and the deposits are from the sponsor. There is no identification of the owner of the account.

    ·Various receipts noted as ‘Gadiane food miscellaneous receipts 2015-2018’.  These are for various food outlets and have handwritten notations on them ‘Expenses Gadiane’ or ‘Gadiane Expenses Food’. There is no identification of who paid for these items or what or whom they were used for and some are indistinct and difficult to read. 

    ·A letter dated 4 January 2018, claiming to be from Alano and Sons certifies that the applicant was a client in 2012 to 2014 who had a personal loan and satisfied her account leaving no obligation.

    ·A letter dated 31 October 2020, claiming to be from Manila Sari Sari Store certifies that Ms Bruce has been a regular customer and availed of door-to-door money transfer services to Ms Gadiane in the years 2013 to 2015.

1. The applicant’s migration agent stated the following. In May 2007, Ms Gadiane discharged her mortgage for her residence in the Philippines where she lived with Mrs Gadiane. She was able to do this because she retired taking a five-year lump sum.  Her pension payments of P14,000 per month began in 2012.  Ms Bruce helped Ms Gadiane and Mrs Gadiane by sending money because Ms Gadiane’s pension only commenced in 2012 and she could not afford house maintenance and to pay for Mrs Gadiane’s health care and living costs.

2. During the period 3 January 2014 to 3 January 2017, Ms Gadiane lived in the Philippines for 554 days and she lived with Ms Bruce in Australia for 542 days. This does not automatically result in a conclusion that Ms Gadiane was not dependent on Ms Bruce for the relevant period. The support Ms Bruce provided for Mrs Gadiane also supported Ms Gadiane given the common living arrangement of Ms Gadiane and Mrs Gadiane. Ms Bruce had a sense of family obligation and provided financial support to keep Ms Gadiane’s house habitable for Mrs Gadiane and Ms Gadiane. There is no contradiction in relation to Mrs Gadiane’s previous visa application, in which it was claimed that Ms Gadiane administered money sent by Ms Bruce on behalf of Mrs Gadiane and the claim made by Ms Gadiane that Ms Bruce supported her.

3. There is no contradiction in Ms Bruce owning her residence as the concept of shelter means just that. If the residence were to fall into disrepair and be inhabitable, there would be no shelter, despite the residence being owned by Ms Gadiane. Ms Bruce’s financial support to maintain the residence was support of Ms Gadiane in relation of shelter.

4. It is accepted that the supporting evidence is not substantial in its quantity.  However, it does support the claims made by Ms Gadiane and Ms Bruce, if the Tribunal accepts them to be witnesses of truth. Then the claimed support should be found to have occurred and Ms Gadiane found to be substantially reliant on Ms Bruce for financial support to meet Ms Gadiane’s basic needs for food, clothing and shelter for the three-year period immediately before the visa application was made. Ms Bruce’s support for Ms Gadiane is ongoing given that she has lived with Ms Bruce since July 2016 and continues to be dependent on the sponsor.

5. Ms Gadiane told the Tribunal the following. In October 2013, Mrs Gadiane fell and broke her arm. In October 2013, February 2014 and July 2014, she borrowed 30,000 pesos, 30,000 pesos and 15,000 pesos respectively to cover Mrs Gadiane’s healthcare which cost more than 80,000 pesos. She could not quantify the cost for Mrs Gadiane’s healthcare over the years 2014-2016 or what portion of the money Ms Bruce sent was used to cover medical costs for Mrs Gadiane. She could not tell the Tribunal what the cost of her food and clothing was from 2014 to 2016.  She stated that the costs were meagre and they lived frugally. During the years 2014 to 2016 she had no income and no government benefits and lived part of her time in the Philippines and part of her time in Australia and Ms Bruce supported her. She is the legal owner of the house and land and currently her nephew lives in the house and Ms Bruce sends him money for utilities and food.

6. Ms Bruce told the Tribunal the following. Ms Gadiane’s house was in disrepair and she partially repaired it in 2007. The cost for Mrs Gadiane’s healthcare in 2013 was more than P130,000 plus living costs. Ms Gadiane’s pension was not enough to cover costs and she fell into debt. Ms Bruce sent money in 2014 and this cleared a debt of approximately P23,000.

7. In a post Tribunal hearing submission Ms Bruce provided information including the following.

   A document with a handwritten note ‘sponsors financial support 2014 – list of door-to- door int’l money transfers to Gadiane via Ruffy’s Express’. The document appears to have had different entries copied into it. There are seven transactions listed from January 2014 to October 2014. The details for five records list BYB Bruce-RuffysExp to Gadiane dated 30 Jan 2014 for $518, 5 May 2014 for $559, 24 July 2014 for $508, 28 August 2014 for $510 and 13 Oct2014 for $509. One record is listed as Bruce-RuffysExp to Gadiane PhilTravelServ $880 Gadiane airfares Dpl Sydney and one listed as Bruce PhilTravel 30 Sept 2014 $2000 to Gadiane. Other pages appear to represent transactions for various services.

   Copies of various service accounts have been provided in Ms Gadiane’s name including cable antenna television P500 monthly for December 2015 to March 2016, telephone service with an amount due of P332.64 for December 2015, telephone calls with amount for P332.64 paid for period December 2015 and December 2016, electricity service with an amount due of P333.76 for October 2015 to November 2015, water service receipt dated May 2016 and April 2016 for P265.

   Various medical records for Mrs Gadiane - a patient summary statement of account as at 24 August 2013 total P18,560.26 for accommodation and various medical services.  A receipt dated 14 August 2013 for P8,860, a summary of services from Cebu Doctor’s University Hospital.  This recorded Mrs Gadiane being admitted on 11 October 2013 and discharged on 16 October 2013 with costs of P92,736. A receipt dated 20 August 2013 for P5,000, a recept dated 24 August 2013 for what appears to be P700 and another for P4,000.

8. The Tribunal accepts the following. After the demolition of her first home, Ms Gadiane borrowed P210,000 to purchase her second home which comprises property and land. She retired in 2007 and received a lump sum retirement payment of P304,919.94. In July 2007, she paid the remaining P94,917 owed against the second home. This resulted in the loan being fully discharged and from that point she owned the second home and land. In 2012, she received a retirement pension of P14,000 (approximately $386) per month which lasted for five years. During this time Mrs Gadiane had substantial medical costs.  In October 2013, February 2014 and April 2014, Ms Gadiane took loans to a total of P75,000 to pay medical costs incurred by Mrs Gadiane. The loans and their repayments related to the costs of Mrs Gadiane’s medical treatment and not the cost of Ms Gadiane’s basis needs of food, clothing and shelter.

9. Ms Gadiane claims that she has been dependent on Ms Bruce including for the period immediately before the time of application. She asserts that after expenses were paid her pension was not sufficient and she was dependent on Ms Bruce for financial support for food, clothing and shelter. The Tribunal accepts that during the relevant time, Ms Gadiane lived partly in Australia in Ms Bruce’s home and partly in the Philippines in her own home. The independent evidence about Ms Bruce financially supporting Ms Gadiane is limited. Various documents provided include the joint bank statements and bank account books for Mrs Gadiane and Ms Gadiane. These record various deposits and withdrawals. They do not give any insight into who deposited money into the joint bank account or about the expenditure of the money. However, in October 2015, joint bankbook ending 0014 recorded a closing balance of P49,976.75. Ms Gadiane told the Tribunal that no further bank statements were available and the joint bank account was closed approximately three years ago. The various receipts relating to purchases do not evidence financial support for Ms Gadiane. The letter from the former owner of Ruffy’s Express, stating that Ms Bruce sent money at regular intervals to the joint bank account from March 2008 to October 2013 does not provide any information about what those remittances were. It does not give any other evidence to support the claim and the stated remittances are not during the relevant time. The letter from Manila Sari Sari Store stating that Ms Bruce sent money to Ms Gadiane from 2013 to 2015 via a door to door service also does not provide any details about these remittances. Even if the Tribunal accepted the claims that Ms Bruce sent money to Mrs Gadiane and Ms Gadiane, the evidence doesn’t establish what the money was used for or that it was used to meet Ms Gadiane’s basic needs for food, clothing and shelter.

10. Ms Gadiane has owned her home and land in the Philippines since 2007.  During the relevant time she continued to own her second home and land. There is no independent evidence to support the claim that Ms Bruce has or had a legal claim on that home or land. The evidence from Ms Gadiane is that she is the legal owner of the home and land and her name is on the relevant property documents.  For five years from 2012 Ms Gadiane received a monthly pension of P14,000 (approximately $386). Although Ms Gadiane was unable to provide the Tribunal with the cost for her food and clothing during the relevant time, she stated that these costs were meagre. The claims about expenditure on home repairs are unsubstantiated. Utility receipts record the cost of electricity for November 2015 as P333.76 (approximately $9.20) and the cost of water for April 2016 as P265 and May 2016 as P265 (approximately $7.30).  The land tax stated to be P711.84 (approximately $20) monthly is unsubstantiated.  However, the evidence is that in October 2015, the joint bank account had a balance of P49,976,75. The Tribunal considered that during the relevant time the applicant owned her own home and land and on her evidence the cost for her food and clothing was meagre and she received a pension-income, the Tribunal is of the view that the applicant was not wholly or substantially reliant on Ms Bruce for her collective basic needs of food, clothing and shelter. Overall, the Tribunal is not satisfied that for a substantial time immediately before the time of application Ms Gadiane was wholly or substantially reliant on Ms Bruce for her basic needs of food, clothing and shelter while she lived in the Philippines.

11. Ms Bruce and Ms Gadiane claim that Ms Bruce covered all of Ms Gadiane’s cost’s while she lives/lived in Australia. The independent evidence to support this is limited. The Tribunal accepts that Ms Gadiane lives/lived in Ms Bruce’s home and on that basis accepts that she met Ms Gadiane’s needs for shelter in Australia. However, as detailed above the receipts that have been provided are without identification of who paid for the items purchased or what they were used for and some cannot be read by the Tribunal. They give little insight into Ms Gadiane’s reliance on Ms Bruce for food and clothing for the time she has lived in Australia.  The Tribunal does not accept that for the time Ms Gadiane has lived in Australia Ms Bruce has met her basic needs for food and clothing because there is little independent evidence to support this. 

12. The Tribunal considered the evidence individually and completely. The Tribunal is not satisfied that at the time of application and for a substantial period immediately before that time, Ms Gadiane was wholly or substantially reliant on Ms Bruce for financial support to meet her basic needs for food, clothing and shelter; or that Ms Gadiane’s reliance on Ms Bruce was greater than her reliance on any other person, or source of financial support to meet her basic needs for food, clothing and shelter. Therefore, at the time of application, the visa applicant does not meet r.1.05A(1)(a)(i) and r.1.05A(1)(a)(ii).

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

14. 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 the prescribed criteria for the visa sought.

    DECISION

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

    Helena Claringbold
    Member