Ghabrial (Migration)

[2021] AATA 2838

Ghabrial (Migration) [2021] AATA 2838 (23 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Kamila Ishak Ghabrial

CASE NUMBER:  1902675

HOME AFFAIRS REFERENCE:               CLF2017/70997

MEMBER:Rosa Gagliardi

DATE:23 June 2021

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 838 (Aged Dependent Relative) visa:

·cl 838.212 of Schedule 2 to the Regulations; and

·cl 838.221 of Schedule 2 to the Regulations.

Statement made on 23 June 2021 at 10:10am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – applicant wholly or substantially reliant on sponsor for financial support – incapacitated for work due to total or partial loss of bodily or mental functions – aged dependent relative of sister – reliant on the sponsor since 2011 – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5CA, 65

Migration Regulations 1994, rr 1.03, 1.05; Schedule 2, cl 838.212, 838.221

CASES
Cole v MIBP [2018] FCAFC 66
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 30 January 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 6 October 2017. 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 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl 838.212.

3. The delegate refused to grant the visa on the basis that cl 838.212 was not met at the time of application, as it was considered the applicant did not meet r.1.03(b).  It appeared the applicant had not been substantially reliant for a substantial period immediately before the time of lodgement, or wholly or substantially reliant on her sponsor (her sister) for financial support for her basic needs of food, clothing and shelter, and therefore did not meet r.1.05A(1).  The applicant also did not establish that her reliance on the sponsor is greater than reliance on any other person (r.1.05A(1)(a)(ii)).

4. The applicant in this case contends that she meets the requirements for dependency under r.1.05(1)(b) because the applicant is wholly or substantially reliant on the sponsor for financial support because she is incapacitated for work due to the total or partial loss of her bodily or mental functions.

5. The applicant appeared before the Tribunal in person on 7 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister, her sponsor in this matter.

6. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The visa application was made on the basis that the applicant is the aged dependent relative of her sister, Ms Ester Shehata, who the applicant claims is her relative. Relative is also 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).

9. In this case Ms Ester Shehata is an Australian citizen and is the applicant’s biological sister.  This matter is not in dispute.

   Background

10. The applicant is a United States national and is of Egyptian background.  She was previously living in Boston with her husband prior to him passing away in 2008.  She has not lived there since 2011, residing in Australia since that time.  The applicant’s psychological documentation shows that she was involved in an abusive spousal relationship and was “systematically emotionally abused and controlled over many years by her husband.  She was not permitted to leave this marriage due to strict cultural expectations that required obedience in terms of her gender role”.  This meant that despite her troubled marriage when her husband became ill with cancer, she left her work permanently in 2006 and nursed him until he passed away in 2008.  The applicant has therefore not worked outside the home for almost 14 years. 

11. She first came to Australia on a Visitor visa and lived with her mother until her mother passed away in 2015 and then moved in with her sister, rent-free, the sponsor, even though this does not exclude that the applicant had been reliant on the sponsor for her financial needs prior to 2015.  It is claimed that the applicant in fact had lived with the sponsor on arrival in Australia in 2011, only living with her mother between March 2013 to March 2015.  The application was made in October 2017. 

12. The applicant has no children or relatives in the United States.

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

13. 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.

14. Broadly speaking, a person will be an ‘aged dependent relative’ of another if: they are a ‘relative’ within the meaning of reg 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 (Cth).

15. In this case, the Tribunal finds that the applicant is the ‘relative’ of an Australian relative for the purposes of cl. 838.212.

    Does the applicant have a spouse or de facto partner?

16. The Tribunal is satisfied that the applicant does not have a spouse for the purposes of r.1.03(a), as she has been widowed since 2008. It also notes notes that this matter was not in contention at the time of application.  For these reasons subparagraph (a) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.

    Is the applicant dependent on the Australian relative?

17. 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).

18. 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]. Further, 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].

19. The applicant claims she has been reliant on the sponsor since 2011.  A reasonable period can be defined under Departmental policy as 3 years.  As the application was lodged in October 2017 this aspect of the regulations is also met.

20. The Tribunal is required to assess whether the applicant is dependent on their Australian relative within the meaning of reg 1.05A. Specifically whether:

    ·the applicant was at the relevant time and for a substantial period immediately prior to that time, wholly or substantially reliant on the other person for financial support to meet their basic needs for food, clothing and shelter; and

    ·their reliance on that person greater than any reliance on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    ·the applicant is 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.

21. The first two dot points are required to be met cumulatively.  The third dot point, (r.105A(1)(b), is in the alternative to the above, although the Tribunal notes that in terms of incapacitation, the applicant must still demonstrate she is wholly or substantially reliant on the sponsor.

    Incapacitation for work

22. Regulation 1.05A(1)(b) states that a person may be considered dependent on another person if they are financially reliant on that person because they are incapacitated for work due to the total or partial loss of their bodily or mental functions. Importantly, as set out in Departmental policy, it would be insufficient merely for the applicant to have a disability; rather they must be incapacitated for work as a result of the total or partial loss of the bodily or mental functions.

23. The term ‘incapacitated for work’ is not defined in the Migration Act 1994 or Regulations, however it was considered in Cole v MIBP [2018] FCAFC 66 in the context of reg 1.03(b)(ii), which states that a child may be considered a dependent child if they are incapacitated for work due to the total or partial loss of their bodily or mental functions. The Full Federal Court in Cole held that the word ‘incapacitated’, whether for work or otherwise, does not mean totally incapacitated, but requires that there is a significant impairment of income earning ability.

24. Departmental policy guidelines state that where a person with a disability is, for example, working in a sheltered workshop or undertaking some other form of ‘work’, they are not to be excluded on this account. Rather, provided they are unable to work to support themselves financially because of that disability, they should be considered dependent on the person providing them with financial support.

25. Essentially, it is for the Tribunal to make findings of fact on the evidence in terms of whether an applicant is capable of gaining full-time employment.

26. The applicant is 69 years of age.  All things being equal, given her age, she may have retired.  Given her spouse is deceased, however, and given that she has not worked for close to 14 years, and on the premise that the applicant does not have extensive savings, the applicant would be required to source income to meet her basic needs were the sponsor unable to assist her. 

27. The Tribunal has had regard to the medical information submitted to the Tribunal referring to the applicant’s psychological condition which has now been longstanding.  This documentation includes:

    ·Letter from Dr Paul Gooding, General Practitioner, dated 27 February 2017, stating the applicant has been under his care since September 2012 and confirming the applicant was suffering with a depressive illness related to the deaths of her husband and mother.  Dr Gooding confirms that the applicant is residing with her sister and sets out the medication prescribed for the applicant consistent with her psychiatric conditions;

    ·A report by Dr Syed, dated 7 October 2020 makes a causal connection between the applicant’s depressive illness and the difficult abusive relationship with her deceased husband of 29 years;

    ·A letter by Dr Guirguis, dated 8 October 2020 confirms the applicant suffers from major depression and has been receiving medication, psychological counselling and psychiatric support and that she has been substantially reliant on the sponsor for financial support due to being incapacitated for work due to her depressive illness;

    ·A further letter by Dr Syed, dated 22 October 2020, restates his previous findings. 
    Dr Syed also recommends the applicant be placed on a mental health plan to ensure she continues psychological treatment. Dr Syed refers to the applicant being stressed, experiencing anxiety and depression, having a long history of domestic violence and that the applicant is worried about having to leave her relatives;

    ·Kessler Psychological Distress Scale (K10) reflecting a high score by the applicant; and

    ·Detailed psychological report by registered psychologist Awaneesh Bamola, dated
    16 December 2020, making a formal diagnosis of Major Depressive Disorder according to the Depression, Anxiety and Stress Scale (DASS-21). 
    Mr Bamola wrote, among other things, “Her symptoms are extremely severe at present.  She has significantly diminished (sic)  in her resilience to stress.  Additionally, she lacks the necessary coping strategies to manage her symptoms which serves to further perpetuate her symptoms.  It is therefore my opinion that these factors (i.e the emotional and associated behavioural symptoms mentioned in the afore) incapacitate to the necessary demands of job seeking and/or adjustment, and integration into a working context at this time, as her symptoms are likely to affect executive cognitive functions necessary to those tasks.  Furthermore, being put in a context that requires her to do so, significantly increases the risk of further exacerbating her symptoms”. 

28. It is also argued that the applicant was receiving psychological counselling from Dr Adler in Boston, USA for her conditions.

29. The medical evidence indicates the applicant experiences suicidal thoughts, grief and ongoing trauma associated with her abusive marital relationship.

30. On the evidence, therefore, the Tribunal is satisfied that the applicant is incapacitated for work – something about which medical practitioners have provided a medical opinion confirming this to be the case.

    Wholly or substantially reliant on the sponsor

31. The Tribunal now turns to the issue of whether the applicant is wholly or substantially reliant on the sponsor because she is incapacitated for work.

    Property in Boston, US

32. At hearing the Tribunal asked why the applicant had not sold the home she and her husband had lived in prior to coming to Australia, or indeed rented it out to establish a stream of income for herself.  The agent held up a photo of a water damaged home and it was asserted that the applicant cannot sell or rent the home because it is in a state of dilapidation and disrepair due to the extreme water damage.  As put to the agent at hearing, the Tribunal would have thought that probative evidence could be submitted by a real estate agent or some other person to give an estimate of the worth of the property.  Instead, the Tribunal if left to rely on the photograph submitted which has no identifying features, as well as the credibility of the applicant and the sponsor.

33. On balance, the Tribunal is prepared to accept that the applicant’s home has been damaged in the applicant’s absence.

34. The Tribunal is unable to assess what the applicant’s intention was when she came to Australia on a Visitor visa in 2011 and whether she indeed had an intention to abide by her visa conditions and return to the United States.  That may have been her intention at the time of application, but on finding her mother unwell continued to remain in Australia and her intention changed post application.  Whatever the case may be, the applicant has not returned to the United States since her arrival and given the property has been abandoned now for some 10 years, had water damage occurred and the applicant been unable to repair it due to a lack of funds, it is plausible that this house is in a state of total disrepair. 

35. Asked why the sponsor had not provided funds to enable the applicant to repair the property, the sponsor stated that the funds needed to make it habitable again were extensive.  The applicant herself does not have the funds to repair the property.  In the circumstances, the property continues to accrue tax/utility/maintenance expenses.  It is argued that the applicant’s expenses for just keeping the property are in the vicinity of $15,144.00 USD annually.

36. It is unclear to the Tribunal what maintenance is being performed on the property given it is being argued that it is totally uninhabitable.  While the Tribunal is prepared to accept that there are ongoing utility, rates and tax obligations the applicant has to fulfil, a more accurate figure would be in the vicinity of $10,000 USD which can be deducted as expenses from her total income (AUD$13,306). 

    Property in ACT

37. When the applicant’s mother passed away the applicant inherited her mother’s property.  This is now leased to Defence Housing Australia (DHA) until 30 August 2021.  Given the current rental rates in Canberra, the Tribunal has no doubt that the applicant will be able to rent this property without difficulty, either to DHA or generally to the public.  It is claimed that income from this property is AUD$7,334.00 per annum after expenses but that there has been an increase in costs.  The Tribunal finds it difficult to accept that a free-standing property in the ACT would only generate an income of just over AUD$7,000.  Even being conservative, such a property would fetch at least $20,000 per annum currently even if in the past the taxation documentation shows the applicant was earning around $17,000 per annum before expenses. 

38. Evidence has been submitted to demonstrate that more recently land tax and other liabilities have reduced the income from the rental property, but the Tribunal considers that an estimation of expenses in the order of $10,000, without probative evidence, is not a true representation of the applicant’s expenses in this regard.  The Tribunal considers that costs of $5,000 for previous years would be a more accurate reflection even with rising costs for utilities and cost of living generally.  This would mean that the applicant therefore has been earning at least AUD$12,000 per annum from the ACT property (from a total $17,000 - $20,000).

39. The Tribunal asked the applicant why she had not sold the property to enable her to live independently.  She stated that her mother had stipulated in her will that the applicant was simply the caretaker of the house and that upon the applicant’s demise it should be passed on to another family member.  Again, The Tribunal does not have evidence of any such restriction over the property but is prepared to accept that this is the case.  The applicant and sponsor were clear at hearing in stating that they could never go behind their mother’s wish in terms of it remaining in the family.

    Social security payments

40. The applicant has also declared that she receives around $28,682 AUD per annum in social security payments.  She also receives a Survivor’s Annuity from her late husband’s workplace equating to $6,000 USD per annum (AUD$8,350).

    Total income

41. The Tribunal’s calculations including $28,682 AUD (social security), plus AUD$8,350 (Survivor’s Annuity) plus $12,000 (Australian property) provide the applicant with an income of $49,032 AUD per annum.  The Tribunal is then required to minus expenses for the US property of AUD$13,306 bringing the total income to AUD35,726. 

42. The migration agent has argued that the applicant’s total income based on the calculations provided is AUD$23,319.00 which the Tribunal does not accept is a true representation of the applicant’s income.  Further the applicant has stated that her monthly expenses would be in the order of $5,600 AUD.  The Tribunal accepts that the applicant has medical expenses, transportation costs covered by the sponsor as the applicant does not drive, and internet and mobile costs.  Were she to live independently she would also have utility accounts at a minimum of $300 per quarter, rental costs of around $25,000 per annum, and clothing and food costs of around $500 per month (even though the applicant stated she required $1,000 per month for food and clothing).  The Tribunal’s estimate that to live a sustainable life the applicant would need around $40,000 AUD per annum, the major component being rent (even though the applicant claimed at the time of application that she would need around AUD67,000 per annum to survive).  The $35,726AUD is, therefore, short of the AUD40,000 required to render the applicant a basic living standard.  

1. The Department in its decision stated that the applicant’s basic annual needs expenses in Australia were she to live independently would be $34,800, acknowledging, however, that “the applicant’s personal income may not have covered the entirety of her basic needs expenses while residing in Australia”, while in the same analysis arguing that the applicant was expected to use her income for her basic needs.  The Tribunal does not consider that rent, utilities, food, clothing, transportation, mode of communications and health and medication fall under the category of “luxuries and discretionary consumption goods or higher order needs”.  

2. Under r.1.05A basic needs are referred to as food, clothing and shelter and for this reason the Tribunal has not included in its assessment the $500 cleaning and maintenance per month which the applicant claims are necessities, in the applicant’s living expenses. 

3. The sponsor is providing shelter to the applicant, free of charge.  She provides food for the applicant and clothing and sees to the applicant’s transport costs and other every day living expenses.  The Tribunal is therefore satisfied that the applicant is dependent on the sponsor as she is financially reliant on sponsor because she is incapacitated for work.  The medical information shows that the applicant is not in a position to earn $40,000 per annum or indeed a lower amount because of her medical conditions and relies on the sponsor for shelter, food and clothing and all her other basic needs.

4. For these reasons the applicant meets subparagraph (b) of the definition of ‘aged dependent relative’ is met at the time of application and at the time of decision.

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

5. 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 (Cth). Different age qualifications apply for men and women and depend upon the date of the applicant’s birth.

6. The applicant is 69 years of age.   For these reasons subparagraph (c) of the definition of ‘aged dependent relative’ is met at the time of application and at the time of decision.

   Conclusion

7. For the reasons set out above, the Tribunal is satisfied that the applicant is the aged dependent relative of an Australian relative at the time of application and at the time of decision for the purposes of cl 838.212 and cl 838.221.

8. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 838 visa.

   DECISION

9. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 838 (Aged Dependent Relative) visa:

   · cl 838.212 of Schedule 2 to the Regulations; and

   · cl 838.221 of Schedule 2 to the Regulations.

   Rosa Gagliardi
   Member