Greenfield (Migration)

[2018] AATA 2998

Greenfield (Migration) [2018] AATA 2998 (10 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Annie Elizabeth Greenfield

CASE NUMBER:  1612780

DIBP REFERENCE(S):  CLF2013/825

MEMBER:Kira Raif

DATE:10 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Aged Parent (Residence) (Class BP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 804 (Aged Parent) visa:

·cl.804.311 of Schedule 2 to the Regulations

Statement made on 10 July 2018 at 3:50pm

CATCHWORDS
Migration – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – Dependent and a member of family unit – Mother of primary visa applicant – Reliance on daughter’s financial support – UK pension – Incapacitated to work – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth),s 65
Migration Regulations 1994 (Cth), rr 1.05A, 1.12, Schedule 2, cls 804.221, 804.311, 804.321

CASES
Huynh v MIMA [2006] FCAFC 122

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 and Border Protection to refuse to grant the applicant an Aged Parent (Residence) (Class BP) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of the UK born in 1926. The applicant applied for the visa on 21 December 2012 as a member of the family unit of the primary visa applicant. The delegate refused to grant the visa on 4 August 2016 without identifying the relevant Schedule 2 criteria which the applicant has failed to meet. The delegate was not satisfied that the applicant was dependent on the primary visa applicant and a member of her family unit. The applicant seeks review of the delegate’s decision.

3. The applicant through her representative provided to the Tribunal a number of submissions in the days prior to the hearing. A large volume of documents was submitted on the evening of 9 July, the day before the scheduled hearing and additional documents were submitted on 10 July. No explanation is offered by the applicant’s migration agent for the extremely late submission of documents or for the failure to comply with paragraph 5.1 of the AAT Practice Directions on Migration and Refugee Matters. The Tribunal is mindful that the application for review was lodged with the Tribunal in August 2016 and the applicant was represented by the same agent throughout the process, so there would have been ample time for the timely preparation and submission of documents.

4. The applicant appeared before the Tribunal on 10 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter and son in law. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

5. At the time the visa application was lodged, the Aged Parent (Residence) (Class BP) visa contained one subclass, Subclass 804 (Parent): Item 1124A in Part 1 of Schedule 1 to the Migration Regulations 1994 (the Regulations). The criteria for a Subclass 804 visa are set out in Part 804 of Schedule 2 to the Regulations.

6. Clause 804.311 and cl. 804.321 require the applicant to be a member of the family unit of a person who meets the primary criteria. The term ‘member of the family unit’ is defined in r. 1.12. Relevantly, it provides

   (1)       For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
   …
   (e)       a relative of the family head or of a spouse or de facto partner of the family head who:

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

   (ii)is usually resident in the family head's household; and

   (iii)is dependent on the family head.

7. ‘Dependent’ is defined in r.1.05A(1) as follows:

   (1)Subject to subregulation (2), a person (the ‘‘first person’’) is dependent on another person if:

   (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

   (i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

   (ii)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 person’s basic needs for food, clothing and shelter; or

   (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions

   Is the applicant a member of the family unit of the primary visa applicant?

8. When making the application, the applicant claimed to be the mother of the primary visa applicant. She is not seeking to meet the primary criteria for the grant of the Aged Parent visa and there is no evidence that the applicant’s children are Australian permanent residents or Australian citizens. The Tribunal is not satisfied on the evidence before it that the applicant meets the primary criteria for the visa grant because the Tribunal is not satisfied she is an aged parent of an Australian citizen, and Australian permanent resident or an eligible New Zealand citizen as required by cl. 804.221.

9. As the applicant claims to be the mother of the primary visa applicant, the Tribunal is not satisfied that she is a spouse of the primary visa applicant or a dependent child of a child. The applicant does not meet the definition of ‘member of the family unit’ in r. 1.12(1)(a), (b) and (c). The Tribunal finds that subparagraphs (2) – (7) of r. 1.12 are not relevant in this case.

10. The visa applicant must meet r. 1.12(2)(e). The Tribunal is satisfied that she is the mother and a relative of the family head, who is the primary visa applicant. The applicant’s evidence to the Tribunal is that her spouse passed away in 2000 and the Tribunal is satisfied she does not have a spouse. The Tribunal also accepts the parties’ evidence that the applicant has been living with her daughter and the daughter’s family since 2000 and the Tribunal is satisfied the applicant is usually resident in the family head's household.

11. The issue before the Tribunal is the applicant’s dependence on her daughter. The applicant stated on the application form that she was dependent on her daughter and son in law for financial support, and also on her pension. The delegate stated in the decision record that the applicant received a UK pension of approximately AUD260-320 per week and had various expenses for rent, food, water, electricity and others. The delegate found that the cost of living, including rent, was considerably lower in the UK compared to Australia and that UK residents had access to departmental housing and NHS. The delegate found that the applicant had the capacity to contribute to household and personal expenses. The delegate was not satisfied that the applicant was wholly or substantially reliant on her daughter for financial support.

12. The Tribunal considers such reasoning to be problematic. The issue is not whether the applicant has a source of income or what the cost of living might be in the UK. The applicant is resident in Australia, so the cost of living in the UK is of little relevance. Neither is it sufficient to state that the applicant’s pension could be used to contribute to her expenses. The question to be addressed is whether, as a matter of fact, the applicant is relying for support on the other person, her daughter, or the pension or other income: Huynh v MIMA [2006] FCAFC 122. No such assessment appears to have been made in reaching the decision.

13. The applicant provided to the Tribunal a number of documents, including a statement from her daughter outlining the close family relationship. She also provided a statement of income and expenses. Essentially, the applicant claims that her pension from the UK covers about a third of her expenses for food, shelter and clothing. The applicant and her daughter told the Tribunal in oral evidence that she receives about 170 pounds a week (about AUD1260 a month) which is paid into their joint account in the UK. The money is then transferred with the pension of the applicant’s daughter and the entire income covers their expenses in Australia. Ms Nicholson told the Tribunal that her income and partner’s income is about $2000 a month and the entire amount is used for living expenses.

14. The Tribunal accepts the parties’ evidence and accepts that the applicant’s funds, together with the funds received by the applicant’s daughter and son in law, are put together and used to pay various living expenses. There is no evidence of any particular funds being used for any particular expenses so it appears that the money is being used proportionately. The Tribunal notes that the applicant’s pension constitutes a little more than half of the income of the applicant’s daughter and son in law. That would indicate that the expenses for basic needs for food, shelter and clothing are being paid proportionately and that the applicant’s income covers a little more than half of such expenses with the remaining funds being provided by the applicant’s daughter and son in law. That is, the applicant’s income alone would not be sufficient to cover her expenses.

15. The applicant is 91 years of age. She referred to being of good health in her evidence to the Tribunal and stated that she has high blood pressure and poor hearing but is otherwise healthy. Given her age, the Tribunal is satisfied that while the applicant does not have any specific health conditions, she is sufficiently frail and incapacitated for work due to the partial loss of bodily or mental functions.

16. The Tribunal finds that the applicant is substantially reliant on her daughter for financial support because the applicant is incapacitated for work due to the total or partial loss of her bodily or mental functions. It is not necessary for the Tribunal to determine whether the applicant’s reliance on her daughter is greater than her reliance on any other source and whether such reliance is limited to basic needs of food, shelter and clothing. The Tribunal accepts the parties’ evidence that the entirety of their income – which includes the applicant’s pension and her daughter’s pension – is used to cover living expenses.

17. The Tribunal is satisfied that the applicant is dependent on her daughter and a member of the family unit of the primary visa applicant. The Tribunal is satisfied that at the time of the application the applicant was dependent and a member of the family unit of the primary visa applicant. She meets cl. 804.311. The Tribunal is also satisfied such dependency exists at the time of this decision, however, the Tribunal does not make a finding in relation to cl. 804.321 because there is no evidence that the primary visa applicant, having satisfied the primary criteria, is the holder of a Subclass 804 visa.

    Conclusion

18. 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 804 visa.

    DECISION

19. The Tribunal remits the application for an Aged Parent (Residence) (Class BP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 804 (Aged Parent) visa:

    ·cl.804.311 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member