Hsu Lee (Migration)

[2020] AATA 4810

Hsu Lee (Migration) [2020] AATA 4810 (3 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Hsiu-tao Hsu Lee

CASE NUMBER:  1807039

DIBP REFERENCE(S):  CLF2016/29723

MEMBER:Adrienne Millbank

DATE:3 September 2020

PLACE OF DECISION:  Brisbane

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;

· cl.838.221 of Schedule 2 to the Regulations.

Statement made on 03 September 2020 at 10:18am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – aged dependent relative of an Australian relative – reasonable period of dependency before application – wholly or substantially reliant on the sponsor – applicant ceased eligibility for health insurance when domiciled outside Taiwan – extensive financial support arrangements – visa applicant lived in sponsor’s home in Taiwan – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 838.111, 838.212, 838.221; rr 1.03, 1.05
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 7 March 2018 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 was born in Taichung City, Taiwan on 1 November 1929. She was 87 years old at the time of application, and is 91 years old at the time of decision. Her husband died on 23 January 2001. She has three children, a daughter (Hsu Tzu-Han, the sponsor) who lives in Australia, and two sons, one of whom lives in China and the other in Taiwan.

3. The applicant first travelled to Australia in October 2003 on a Visitor visa. She travelled and spent time here nearly every year after this, on Visitor visas. She spent around seven months here from 11 October 2012 to 15 May 2013, three months from 22 November 2012 to 14 February 2015, and three months from 28 November 2015 to 20 February 2016. She returned to Australia on 21 February 2016, and applied for the visa on 11 May 2016. Since applying for the visa, she has departed Australia twice, with the sponsor, from 15 July 2017 to 30 August 2017, and from 25 April 2018 to 27 September 2018.

4. At the time of application, 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, which requires that the applicant is an aged dependent relative of an Australian relative.

5. The delegate refused to grant the visa on the basis that cl.838.212 was not met. The delegate was not satisfied that the applicant had been dependent on the sponsor for a reasonable period, as required to meet the definition of ‘dependent’ in r.1.05A(1)(b). 

6. The delegate noted in the decision record that a ‘reasonable period’ of dependency immediately prior to the date of lodgement of the application, under Departmental policy, was three years. The delegate noted that the applicant had spent a total of 255 days in Australia in the three years preceding the time of application, and acknowledged she was wholly or substantially dependent on the sponsor while she was in this country. However, insufficient evidence was provided to satisfy the delegate that the applicant was wholly or substantially reliant on the sponsor for her basic needs for food, clothing and shelter, for the other 840 days, while she was in Taiwan. 

7. The applicant was represented in relation to the review by her registered migration agent.

8. An in-person hearing scheduled for 19 March 2020 was cancelled by the Tribunal. On 17 July 2020, the Tribunal invited the applicant to an in-person hearing scheduled for 3 August 2020. On 24 July 2020 and 28 July 2020, the Tribunal received further submissions and evidence. On 28 July 2020, the Tribunal wrote to the applicant, through the representative, to advise her that it had cancelled the hearing for the reason that it was no longer required, and the Tribunal intended to make a decision on the papers.  

9. On 24 August 2020 the Tribunal wrote to the applicant requesting further information. The information requested was received by the Tribunal on 2 September 2020.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The visa application was made on the basis that the applicant is the aged dependent relative of Hsu Tzu-Han, who the applicant claims is her relative. 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).

12. In this case Hsu Tzu-Han is an Australian citizen, and is the applicant’s daughter.

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

13. 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.

14. 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.

15. In this case, 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. Evidence was provided in the form of a household registration transcript that the applicant’s husband died in Taiwan on 23 January 2001. There is no information before the Tribunal to indicate that the applicant has had a partner since the death of her husband. Subparagraph (a) of the definition of ‘aged dependent relative’ is therefore 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, as noted, 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).

18. 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: Huynh v MIMIA (2006) 152 FCR 576 at [43].

19. The representative submitted, in a statement received by the Tribunal on 24 July 2020, that while the applicant has three children, she has been financially reliant on her daughter, the sponsor, for her basic needs, while living with the sponsor in Australia, and also for a substantial period before the application was lodged, when the applicant was living in Taiwan.

20. Receipts for clothing, food and chemist items for the applicant, and copies of official mail addressed to the applicant at the sponsor’s address, were provided, as evidence that the applicant has lived with her daughter and son-in-law in Australia and been financially dependent on the sponsor.  Statements of transactions from the applicant’s Australian bank account from January 2016 to January 2019 were provided, showing few transactions, regular small deposits from the sponsor, sufficient to keep the account going, and a balance of AUD380.73 as at 29 January 2020. Statements of transactions were provided from the sponsor and her husband’s joint bank account, showing expenditure on the applicant’s travel between Australia and Taiwan, as well as on items of clothing, and special purchases, food, medical and chemist items, for the applicant.

21. In a written statement received by the Tribunal on 24 July 2020, the applicant stated that, in 2014, 2015 and 2016, she received an allowance from the Government of Taiwan, a pension or subsidy for aged farmers, of less than AUD40 a week, which was insufficient to provide for her basic needs. The representative submitted that payment of this pension was ceased in 2016 because the applicant was considered to be ‘usually domiciled’ in Australia. A copy of a letter dated 17 April 2016, from the Houli Agricultural Commission in Taichung, was provided, advising the applicant she was no longer eligible for health insurance as a retired farmer, because she was domiciled overseas.

22. In her written statement the applicant described how:

    ·she is close to her daughter, the sponsor, and, since her husband died in 2001, has increasingly relied on the sponsor for companionship as well as financial support;

    ·she and her daughter have similar temperaments and tastes and get on well together;

    ·her daughter has chosen and purchased all her clothing for her for the last decade;

    ·she would come to Australia on Visitor visas and remain with her daughter for as long as she lawfully could;

    ·her daughter and husband have paid all her travel costs to and from Australia for her last seven visits;

    ·her daughter would accompany her back to Taiwan and settle her down before returning to Australia;

    ·her daughter sources and cooks for her the healthy food she likes; and

    ·besides being financially dependent on the sponsor, she has in recent years grown more dependent on her for ‘everyday little things’, like shopping, bathing, and getting a haircut. 

23. A sworn statement signed on 25 September 2018 was provided from the ‘second son’ of the applicant, Mr Chin-Mu Hsu, in which he declared the following:

    ·his older brother lives permanently in China and for personal and family reasons neither he nor his brother ‘were always able to care for the applicant’;

    ·the sponsor and her husband have no children of their own and because of their financial situation and the sponsor’s closeness to the applicant, the sponsor and her husband have been able and willing to support and care for the applicant;

    ·he and his brother were grateful to their sister, the sponsor, for taking on the responsibility of supporting and caring for their mother;

    ·the sponsor opened a deposit account in the credit department of the Houli Township Farmers’ association, in 2007, to be used for the support of the applicant, and the sponsor regularly deposited sufficient money into this account for the support of the applicant;

    ·his mother, the applicant, was not well-educated, and when she was still living in Taiwan he helped her to withdraw money, sometimes in large cash amounts, which the applicant preferred, from this account, for her daily needs including food and medicine. She didn’t need to pay rent;

    ·he was able to withdraw cash for the applicant because the sponsor left a withdrawal card, for that purpose. All the money he withdrew from the sponsor’s bank account was for that purpose;

    ·the applicant mostly stayed in the sponsor’s apartment in Taipei in the years before she came to Australia. She stayed with the sponsor in the sponsor’s apartment after her husband died in 2001, and after the sponsor left for Australia, and she preferred living there than in the house he inherited when his father, the applicant’s husband, died; and

    ·he would collect the applicant to stay with his family ‘for short intervals’ at times of family festivals but apart from these times, she mainly stayed in the sponsor’s apartment.

24. Translated copies of statements from the withdrawal book of the sponsor’s bank account in Taiwan were provided, which show transactions consistent with the parties’ claims regarding financial support arrangements set up for the applicant by the sponsor after the sponsor moved to Australia, and during the three years immediately prior to the lodgement of the visa application. There is no information before the Tribunal to indicate that the applicant did not spend most of her time, while in Taiwan in the years before lodging the application, when she was not visiting the sponsor in Australia, in the sponsor’s apartment, as claimed by her second son.

25. The sponsor’s movement records show that during the three years 2013, 2014 and 2015 she was out of the country for a total of around 51 weeks or 375 days. They support the parties’ claim that the sponsor spent significant periods of time in Taiwan during the three years before the visa application, during which time she stayed in her apartment with the applicant and supported the applicant. The sponsor’s movement records show that since the lodgement of the application, she has travelled with the applicant, on trips to Taiwan, in 2017 and 2018. The Tribunal finds that since 2013, a reasonable time before the lodgement of the application, the applicant has been substantially reliant on the sponsor for her care and support. 

26. Information and evidence was before the Tribunal that was not before the delegate. Having considered the further information and evidence before it, the Tribunal finds that the applicant was at the relevant time, and for a substantial period immediately prior to that time, wholly or substantially reliant on the sponsor for financial support to meet her basic needs for food, clothing and shelter. The Tribunal further finds that the applicant’s reliance on the sponsor was and is greater than any reliance on any other person, or source of support, for financial support to meet the applicant’s basic needs for food, clothing and shelter.

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

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

28. 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.

29. Based on her date of birth, 1 November 1929, the applicant’s Australian pension age is 60. At the time of application, the applicant was 87 years of age and at the time of decision she is 91. Therefore, the applicant is old enough to be granted an age pension, and subparagraph (c) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.

30. 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 the time of decision for the purposes of cl.838.212 and cl.838.221.

31. 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

32. 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;

    ·cl.838.221 of Schedule 2 to the Regulations.

    Adrienne Millbank
    Member