Janse Van Rensburg (Migration)
[2021] AATA 2816
•15 June 2021
Janse Van Rensburg (Migration) [2021] AATA 2816 (15 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Ms Maria Helena Plippina Janse Van Rensburg
CASE NUMBER: 1902325
DIBP REFERENCE(S): CLF2016/42570
MEMBER:Christine Kannis
DATE:15 June 2021
PLACE OF DECISION: Perth
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 15 June 2021 at 6:38am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – definition of ‘aged dependent relative’ is met – applicant was “wholly or even substantially” reliant on her sponsor– decision under review remitted
LEGISLATION
Migration Act 1958, ss 65
Migration Regulations 1994, rr 1.03, 1.05; Schedule 2, cls 838.212, 838.221
CASES
Huang v MIMIA [2007] FMCA 720
Huynh v MIMIA (2006) 152 FCR 576
Vo v Minister for Home Affairs [2019] FCAFC 108
Re Drake v Minister for Immigration an Ethnic Affairs (1979) 2 ALD 634STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 January 2019 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 16 November 2016. 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 (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.
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 wholly or substantially reliant on the sponsor for a substantial period, as required to meet the definition of ‘dependent’ in r.1.05A(1)(a).
The applicant appeared before the Tribunal on 13 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence the applicant’s daughter, Ms Petronella Johanna Robbetze and her son-in-law, Mr Deon Robbetze. The Tribunal was assisted by an interpreter in the Afrikaans and English languages.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa application was made on the basis that the applicant is the aged dependent relative of Petronella Johanna Robbetze, who the 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).
In this case, Ms Petronella Johanna Robbetze, is an Australian citizen and is the applicant’s daughter.
Is the applicant an aged dependent relative of an Australian relative?
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 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.
The Tribunal is satisfied on the evidence before it that the applicant is the mother of the sponsor, an Australian citizen. The Tribunal is satisfied that the sponsor is the daughter of the applicant. In this case, the applicant is the ‘relative’ of an Australian relative for the purposes of cl.838.212 and cl.838.221.
Does the applicant have a spouse or de facto partner?
The applicant was married to Mr Hermanus Petrus Christian Janse Van Rensburg. A Marriage Certificate was provided evidencing the date of marriage was 20 September 1958. The applicant’s husband died on 19 August 2005. The applicant provided a copy of her husband’s Death Certificate. The applicant has not remarried. The applicant has previously signed a statutory declaration stating she has remained single since her husband’s death. The Tribunal accepts the applicant’s statement.
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?
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 support, for 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).
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].
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.’
The Tribunal agrees with the delegate and finds that the period under review is the three years preceding the date of application, from 16 November 2013 to 16 November 2016.
The Tribunal has reviewed the evidence presented to the delegate pertaining to the applicant’s dependence on the sponsor at the relevant time and for a substantial period immediately prior to that time. This information included:
·The applicant declared in her application form that she had been financially dependent on her sponsor for ten years and two months.
·During the period under review, 16 November 2013 to 16 November 2016, the applicant spent 595 days in her home country of South Africa, 14 days in Indonesia and the remaining time in Australia.
·The applicant provided personal bank statements for period under review. She also provided bank statements relating to two separate entities (Zelpy 1343 Pty Ltd and Deonell Trust) for the corresponding period. The documents establish that during the period under review, the applicant received monthly payments of 9,500 ZAR from the two entities that were associated with her sponsor and her sponsor’s spouse.
·The applicant provided an estimate of her monthly basic needs expenses in South Africa, which were declared as follows:
oFood – 1,600 ZAR
oClothing - 300 ZAR
oAccommodation/Shelter – 3,500 ZAR
oPrivate health Insurance – 4,725 ZAR
oMedicine - 600 ZAR
oFuneral Insurance – 127 ZAR
oTransport – 1,500 ZAR
oMobile Telephone - 116 ZAR
·The applicant’s claimed monthly income of 12,401.55 ZAR while in South Africa was as follows:
oIncome from sponsor – 9,500 ZAR
oAge Pension – 1,500 ZAR
oRetirement Annuity – Old Mutual – 1,032.88 ZAR
oRetirement Annuity –Sanlam– 368.67 ZAR
Prior to the hearing the Tribunal was provided with statutory declarations made by the applicant, her daughter the sponsor, Mrs Robbetze and the sponsor’s husband, Mr Deon Robbetze. Each declarant stated that the applicant has been usually resident in Australia since November 2016 and that she resides with the sponsor and her husband and they cover all her basic living costs including food, clothing and shelter.
Prior to the hearing the applicant’s representative provided a written submission which included the following:
·The delegate accepted that the applicant’s personal income would not cover the majority of her basic needs expenses while residing in Australia.
·The delegate’s concerns relate to the period 16 November 2013 to 16 November 2016 when the applicant was resident in South Africa. The applicant was in South Africa for 595 days during this period – being just over half the three-year period.
·The applicant’s total monthly income was 12,401.55 ZAR of which 77% was provided by the sponsor. The applicant’s monthly income, excluding the funds provided by the sponsor, was 2,901.55 ZAR per month.
·The applicant’s estimated monthly expenses in South Africa totalled 12,468 ZAR – an amount well above her monthly income, excluding the funds provided by the sponsor. The delegate concluded that the ‘basic needs’ component of the monthly expenses should only include the amounts spent on food, clothing and shelter – an amount of 5,400 ZAR. As the applicant’s monthly income, excluding the funds provided by the sponsor, was 2,901.55 ZAR, the delegate concluded that the applicant ‘was, to a degree, reliant on her sponsor for financial support to meet her basic needs expenses while residing in South Africa.’
·There must be a meaningful degree of financial reliance to be regarded as dependent but this does not mean the sponsor had to provide at least half the support for the basics of food, clothing and shelter. The sponsor had to provide the greatest amount of support of any source.
·Departmental policy with respect to assessing dependency includes the following:
Reg. 1.05A(1)(a)(ii) - Reliance greater than any other source
42.1 Assessing reg. 1.05A(1)(a)(ii)
Officers need to assess whether or not the claimed dependent's reliance on the other person to meet their basic needs is greater than any other source of income.
42.2Measuring the degree of reliance
For example, if a person receives 30% of their income (for their basic needs) from a part-time job, another 30% from government benefits, and another 40% from the family head, then they would meet regulation 1.05A(1)(a)(ii), as they are reliant on the family head in order to meet their basic needs more than any other source.
·In this case, the applicant received income from four sources: age pension; Retirement Annuity – Old Mutual; Retirement Annuity – Sanlam; and income from sponsor. The delegate erred by not considering each source of income individually. The delegate grouped the four sources under ‘personal income’. It is incorrect when assessing the degree of reliance to group these sources of income together.
·The degree of reliance on the four abovementioned sources to meet the applicant’s basic lower order needs was as follows: Age pension – 28% (1,500 ZAR of 5,400 ZAR) ; Retirement Annuity – Old Mutual – 19% (1,032.88 ZAR of 5,400 ZAR) Retirement Annuity – Sanlam – 7% (368.67 ZAR of 5,400 ZAR); and income from sponsor – 46% (2,498.45 ZAR of 5,400 ZAR.)
·The applicant’s financial reliance on the sponsor to meet her basic lower order needs was considerably greater than her reliance on any other single source of income.
The applicant first came to Australia in 2011 on a Tourist visa. She made further trips to Australia on Tourist and Visitor visas during the period 2011 to 2016. The applicant’s Movement Record shows that during the period under review she was not in Australia from 16 November 2013 to 20 September 2014, from 21 March 2015 to 31 December 2015 and from 2 July 2016 to 15 July 2016. Her Movement Record shows that the applicant most recently arrived in Australia on 1 July 2019 and she has not departed since that time.
The applicant told the Tribunal that during the three years preceding the date of lodgment, when she was in South Africa, her daughter the sponsor and her son-in-law made monthly payments to her to pay for the shortfall in her personal income and food, clothing and shelter costs. Documentary evidence of these payments was provided. Mrs Robbetze and Mr Robbetze gave consistent evidence regarding these payments.
The applicant told the Tribunal that during the three years preceding the date of lodgment, when she was in Australia, she lived rent free with her daughter and her son-in-law and they paid for her food and clothing. She said her personal income was used to pay for her shelter in South Africa as she was still required to pay rent during these periods. Her personal income was not sufficient to pay her rent and she said her son-in-law paid the shortfall. Mrs Robbetze and Mr Robbetze gave consistent evidence regarding these payments.
The applicant told the Tribunal that she currently resides with her daughter and her son-in-law. She does not pay rent and they pay for her food and clothing. Mr Robbetze told the Tribunal that he deposits $1,000 per month into the applicant’s bank account. In the representative’s written submission, he advised that the applicant’s pension and annuities are paid in South Africa and are not received by her in Australia.
At hearing the applicant confirmed that, other than her pension, annuities and income from her daughter and her son-in-law, she has not received financial assistance from any other person or source during the period under review or at the present time.
The Tribunal noted that the applicant said her daughter the sponsor and her son-in-law provided financial assistance to her in South Africa and in Australia. In Al Naqi v MIAC,[1] the Court commented that ‘on a broad and practical level financial support for a person’s relatives, from their spouse, can be considered support by them if their spousal relationship is an essential or substantial part of the reason that the support is provided.’[2] Adopting the Court’s view in Al Naqi, the Tribunal finds that the financial support provided by the applicant’s son-in-law is support provided by the sponsor, the applicant’s daughter. In addition, in Nguyen v MICMSMA, the Court interpreted ‘any other…source of support’ in r.1.05A(1)(a)(ii) as denoting support provided by two or more people acting collectively in providing financial support for food, clothing and shelter to the visa applicant.[3] On this basis the Tribunal finds that the financial support provided by the applicant’s daughter and son-in-law is a single source of support.
[1]Al Naqi v MIAC [2007] FMCA 874.
[2]Al Naqi v MIAC [2007] FMCA 874 at [16].
[3]Nguyen v MICMSMA [2020] FCCA 2705 at [34]. The Court found the Tribunal did not make any jurisdictional error to the extent it aggregated the contributions of the visa applicant’s grandmother and aunty (with whom he lived) when determining whether the visa applicant’s reliance for financial support on the sponsor was greater than her reliance on the support provided by the grandmother and aunty. .
The Tribunal accepts the claims made that during her time in Australia in the three years preceding the date of application and at the time of this decision, the applicant has been wholly or substantially reliant upon her daughter and her son-in-law for financial support to meet her basic needs for food, clothing and shelter. The applicant lives at her daughter’s and son-in-law’s residence. She lives rent free. Her daughter and son-in-law provide financial support for food and clothing. In the three years leading up to lodgement of the application, the Tribunal is entirely satisfied that the applicant was wholly or substantially reliant upon her daughter and her son-in-law for financial support to meet her basic needs for food, clothing and shelter whilst she resided in Australia. This means from 21 September 2014 to 21 March 2015, from 1 January 2016 to 2 July 2016 and from 16 July 2016 until 31 December 2016 – a period of eighteen months – the Tribunal finds the applicant was wholly or substantially reliant upon her daughter and her son-in-law. The Tribunal is further satisfied that at the time of this decision the applicant is wholly or substantially reliant upon her daughter and her son-in-law for financial support to meet her basic needs.
The financial information provided by the applicant show her food, clothing and shelter expenses in South Africa were 5,400 ZAR per month and her pension and annuities income was 2,901.55 ZAR per month. The delegate decided that the applicant did not meet r.105A(1)(i) because she was not wholly or substantially reliant on the sponsor for financial support to meet her basic needs during periods she resided in South Africa in the three years preceding the date of lodgement. In making this decision the delegate found that the applicant was meeting most of her basic needs from her personal income.
The Full Court in Vo v Minister for Home Affairs [2019] FCAFC 108 clarified that “substantial reliance” does not mean primarily, essentially or in the main, and that the contention that this means only reliant on one person to the exclusion of others or at least reliant to an extent that is more than 50% was rejected. The Court adopted a holistic approach suggesting that it is the overall position that should be considered. The Court noted that the notion of substantial reliance requires ‘a meaningful degree’ of financial reliance on a person to an extent that the person might properly be described as being dependent on that person (as distinct from simply receiving some assistance from that person) for basic needs.[4]
[4]Vo v Minister for Home Affairs [2019] FCAFC 108 at [17].
The applicant spent 595 days in South Africa in the three years prior to her visa application. Regarding the periods during which she resided in South Africa, the Tribunal accepts the claims made that her daughter and son-in-law made monthly payments into her bank account. The claims are consistent with bank account documentation provided. The Tribunal accepts that the applicant’s personal income was not sufficient to cover her rent and that her daughter and son-in-law supplemented her shelter costs and paid for all her food and clothing. Adopting the holistic approach in Vo, the Tribunal is satisfied that even though the applicant’s personal income paid for part of her rent, she was substantially reliant on her daughter and son-in-law to pay for part of her shelter costs and all of her food and clothing. The Tribunal has reviewed the period whilst she was outside of Australia and on the evidence before it is satisfied that the applicant remained at least substantially reliant upon her daughter and son-in-law during this period.
Accordingly, the Tribunal finds:
· that the applicant is wholly or substantially reliant on the sponsor for financial support at the time of this decision and was so reliant on the sponsor in the three years preceding the time of application during periods when she was residing in Australia and that the financial support provided is to meet the applicant’s basic needs for food, clothing and shelter; and
· the applicant was substantially reliant on the sponsor for financial support during the preceding three years when she resided in South Africa and that the financial support provided was to meet the applicant’s basic needs for food, clothing and shelter: r.1.05A(1)(i).
The Tribunal turns to consider whether the applicant’s reliance on her daughter the sponsor and her son-in-law was and is greater than any reliance on any other person, or source of support, to meet her basic needs for food, clothing and shelter.
In relation to the periods the applicant was in Australia during the three years preceding the application and at the time of this decision, the Tribunal is satisfied that her reliance upon the sponsor was and remains greater than any reliance on any other person, or source of support, to meet her basic needs for food, clothing and shelter. In reaching this decision the Tribunal takes into account that when the applicant is in Australia she resides with her daughter the sponsor and her food and clothing costs are paid by her daughter and son-in-law.
In relation to the periods during which the applicant resided in South Africa in the three years preceding the date of application, the delegate decided that the applicant’s personal monthly income of 2901.55 ZAR from her pension and two annuities was a single source of income and decided that this personal income met the cost of most of her basic needs, which totaled 5,400.00 ZAR per month. Therefore, her reliance on the sponsor for financial support to meet her basic needs expenses while resident in South Africa was not greater than her reliance on her own personal income.
Departmental policy guidance on the interpretation and application of the Regulations is contained in the Procedures Advice Manual (‘PAM3’). The Tribunal is not bound by the policy and must make decisions on their merits and according to law. However, it will take it into account and apply it in the usual case unless there is a cogent reason not to do so. (Re Drake v Minister for Immigration an Ethnic Affairs (1979) 2 ALD 634).
The representative’s written submission referred to Departmental policy regarding Reliance greater than any other source. In the present case, the Tribunal is satisfied that PAM3 is not inconsistent with the provisions and objects of the Act. The Tribunal accepts, consistent with PAM3, that the applicant’s pension and annuities should not be aggregated and treated as one source of support.
The Tribunal asked the applicant about her reliance upon any other person or source of support beyond her daughter and her son-in-law. The applicant said she has not received financial assistance from any other person. There is no other evidence before the Tribunal of the applicant’s reliance on any other party to meet her basic needs for food, clothing and shelter.
While the Tribunal accepts that the applicant did rely upon the pension and annuities she received whilst living in South Africa, her reliance was ultimately not greater than her reliance upon her daughter the sponsor to meet her basic needs for food, clothing and shelter. In coming to this decision, the Tribunal took into account the bank account documentation, the applicant’s estimated monthly food, shelter and clothing costs and the amounts of her pension and each annuity. On the evidence before it the Tribunal is satisfied that the applicant’s reliance upon the sponsor during the three years preceding the application when she was in South Africa was greater than any reliance on any other person, or source of support, to meet her basic needs for food, clothing and shelter: r.1.05A(1)(a)(ii).
Accordingly, the Tribunal finds:
·that the applicant’s reliance on the sponsor when she resided in Australia during the three-year period prior to the time of application and at the time of this decision was and remains greater than any other source of support; and
·that the applicant’s reliance on the sponsor when she resided in South Africa during the three-year period prior to the time of application was greater than any other source of support r.1.05A(1)(ii).
There was no evidence to indicate that the applicant is incapacitated for work because of total or partial loss of bodily or mental functions and no claims were made in this regard.
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?
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.
The applicant was 78 years of age at the time of application and is 82 years of age at the time of decision. An aged dependent is defined as someone who is old enough to be granted an aged pension under the Social Security Act 1991. 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
Having had regard to all the evidence, the Tribunal is satisfied that the applicant meets r.1.05A(1) and therefore meets r.1.03(b) at the time of application and the time of decision as the applicant was dependent on the sponsor for a substantial period, and remains so dependent.
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.
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
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
Christine Kannis
Member
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