Jammu (Migration)

[2017] AATA 806

Jammu (Migration) [2017] AATA 806 (5 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jaspreet Jammu

VISA APPLICANT:  Mrs Balwinder Kaur

CASE NUMBER:  1515903

DIBP REFERENCE(S):  2013/046490 OSF2013/046490

MEMBER:Lisa Lo Piccolo

DATE:5 May 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

Statement made on 05 May 2017 at 5:04pm

CATCHWORDS
Migration – Other Family (Migrant)(Class BO) visa – Subclass 114 (Aged Dependent Relative) – Not wholly or substantially reliant on sponsor – Reliance not  greater than other means of support –  Pension recipient – Reliance not greater for basic needs for food, clothing and shelter

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 114.211, cl 114.221, r 1.03, r 1.05A(1)
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 14 September 2015 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 20 March 2013. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer). In the present case, the visa applicant is seeking to satisfy the criteria for the grant of a Subclass 114 visa which requires the primary visa applicant to be the aged dependent relative of an Australian citizen, permanent resident or an eligible New Zealand citizen. The criteria for a Subclass 114 visa are set out in Part 114 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.114.211.

3. The delegate refused to grant the visa on the basis that cl.114.221 was not met. The delegate was not satisfied that the applicant was, and had been for a substantial period of time, wholly or substantially reliant on her son for her basic needs for food, clothing and shelter. A copy of the primary decision record was provided to the Tribunal.

4. The review applicant appeared before the Tribunal on 27 February 2017 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The visa application was made on the basis that the visa applicant is the aged dependent of Jaspreet Jammu, who the visa applicant claims is their 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).

2. In this case Jaspreet Jammu is an Australian citizen and is the visa applicant’s son.

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

1. To be granted a Subclass 114 visa the visa 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.114.211 and cl.114.221. ‘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.

3. On the basis of the evidence before it, the Tribunal is satisfied that Mr Jammu is the son of the visa applicant. In this case, the visa applicant is the ‘relative’ of an Australian relative for the purposes of cl.114.211.

Is the visa 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. According to the evidence, the applicant resides in an house owned by Mr Jammu.  She has lived there since sometime in 2013.  Mr Jammu sends her $600 each month to pay the mortgage.  Mr Jammu said that she moved houses in 2013 because of accessibility and the fact that lot of thefts were occurring which made her feel unsafe.  The house cost 45 Lach and Mr Jammu paid the deposit and took out a loan for 15 Lach to pay the balance.  The applicant did not contribute to the cost of the house.  The applicant does own a home in India and that home is not rented.  It remains vacant so she does not receive any income rental from it.  Mr Jammu said he paid for regular maintenance expenses and had been doing so since late 2013. 

4. Mr Jammu told the Tribunal that the applicant receives a pension.  He said when his father retired he had savings and they relied on this for a long time.  He said he was planning to start his own business as an auditor consultant but then he passed away. 

5. According to the Department’s decision, the applicant was interviewed by the Department in April 2013.  At that time she advised the Department that she was residing in her own home and received a monthly pension of INR11,000.  It also records that she does not have any other source of income at that time.  Mr Jammu confirmed this was the case, although he stated that he had sent her money on occasion.

6. The Department’s decision also records her advice that her monthly expenditure is around INR 15,000 to INR 25,000 and that she did not have any special medical issues except for blood pressure so these costs ‘do not cost much’.

7. At the hearing Mr Jammu told the Tribunal that the applicant can meet her own expenses relating to food and clothing but he meets everything else.  He also said that he has been sponsoring the applicant to visit him in Australia and during those stays he is responsible for food, clothing and shelter.  He said this is also how she accumulates her pension and has a buffer when she returns to India.

8. As noted above, the applicant receives an Indian pension which she uses to pay for food and clothing.  The Tribunal accepts on the basis of the documents provided and the oral evidence that Mr Jammu that he has been assisting his mother significantly since late 2013 particularly by purchasing a new house for her to live in, and meeting all associated mortgage and other expenses.  The Tribunal accepts that Mr Jammu feels obliged to meet her mother’s needs due to their close family relationship. It is satisfied that the applicant uses her pension and any accumulated savings to meet her basic needs of food and clothing.  The Tribunal is also satisfied that Mr Jammu has been providing her with accommodation since late 2013 as well as meeting any other expenses she has had aside from food and clothing since that time.  The Tribunal is also satisfied that she was living in her own house at the time of the application and subsequent interview with the Department, and had been meeting her own basic needs of food, clothing and accommodation since the death of her husband.

9. The Tribunal is not satisfied that the applicant’s reliance on Mr Jammu is greater than any other means of support, including her income from her pension. The Tribunal is also not satisfied that she was at the time of application and for a substantial period immediately prior to the time of the application, substantially reliant on Mr Jammu for financial support to meet her basic needs for food, clothing and shelter.  Although the Tribunal is satisfied that at the time of decision and for a substantial period immediately prior to that time, the applicant has been solely reliant on Mr Jammu to provide her with shelter, the Tribunal is not satisfied that she is reliant on him to provide financial support to meet her basic needs of food and clothing

10. Based on the material before it, the Tribunal therefore finds that the applicant was not, at the time of application and time of decision, and for a substantial period immediately prior to those dates, substantially reliant on Mr Jammu for financial support to meet her basic needs for food, clothing and shelter. It further finds that the applicant’s reliance on Mr Jammu was not greater than any reliance by the applicant on any other person, or source of support, for financial support to meet her basic needs for food, clothing and shelter.

11. The Tribunal is therefore not satisfied that the applicant meets the definition of dependent, as defined in Regulation 1.05A of the Migration Regulations 1994.

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

13. 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 or the time of decision for the purposes of cl.114.211 and cl.114.221.

14. For the reasons above, the visa applicant does not meet the criteria for a Subclass 114 visa. In respect of the other visa subclasses 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 visa applicant an Other Family (Migrant) (Class BO) visa.

Lisa Lo Piccolo
Member