Kaukimoce (Migration)

[2019] AATA 2666

Kaukimoce (Migration) [2019] AATA 2666 (25 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sisilia Tupou Kaukimoce

CASE NUMBER:  1727350

DIBP REFERENCE(S):  CLF2017/11570

MEMBER:Justin Owen

DATE:25 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 25 June 2019 at 2:00pm

CATCHWORDS

MIGRATION ­– Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – definition of ‘aged dependent relative’ is met – not meeting the relevant definition of dependence – applicant is not incapacitated – referred for Ministerial Intervention– decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65,351

Migration Regulations 1994, rr 1.03, 1.05 Schedule 2, cls 838.111, 838.212, 838.221

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 18 October 2017 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 applied for the visa on 20 January 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 (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 because the delegate was not satisfied that the applicant met the requirements of an Aged Dependent Relative as defined in Regulation 1.03. 

4. The applicant appeared before the Tribunal on 30 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Kulinio Bola Kaukimoce, who is the applicant's son. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa application was made on the basis that the applicant is the aged dependent relative of Mr Kulinio Bola Kaukimoce, 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).

8. In this case Mr Kaukimoce is an Australian permanent resident and is the applicant’s son.

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

9. 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.

10. 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.

11. The Tribunal is satisfied on the evidence before it that the applicant is the mother of the sponsor, an Australian permanent resident.  The Tribunal is satisfied that the sponsor is the son 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?

12. The applicant was married to Mr Jonetani Totoko Kaukimoce, a former Member of the Fijian Parliament and Minister of the Fijian Government on 1 July 1972.  A Fijian Certificate of Marriage was provided to the delegate confirming this (D1, Folio.189).  The applicant’s husband died on 11 March 2010.  The applicant provided a copy of her husband’s Certificate of Death (D1, Folio.188).  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.    

13. 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 old enough to be granted an age pension?

14. 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.

15. The applicant was 69 years of age at the time of application and is 71 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

    Is the applicant dependent on the Australian relative?

16. 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).

17. 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].

18. The Tribunal notes that the applicant has spent a significant time residing with her son the sponsor.  The applicant has lived with the sponsor continually since October 2016 –at his home with his wife and their five children aged between two and eleven years of age.  The applicant visited Australia twice on visitor visas for periods of three months prior to this in 2015 and 2016: the Tribunal accepts that the applicant lived with her son – who arrived in Australia in September 2014 – at that time.  On the evidence before it the applicant arrived in Australia again in October 2016 and lodged her Aged Dependent Relative visa application around three months later in January 2017.

19. The applicant is a widow in receipt of a Parliamentary pension as a result of her late husband’s service to the Parliament of Fiji.  She also receives a smaller Military pension as a result of her late husband’s military service.  At the time of application the pension was around F$702.62 per fortnight for the parliamentary pension and F$123.60 per month for the Military pension.  According to the applicant’s written submission this amounted to $1528.84 in Fijian dollars every month (T1, Folio.50).  At the time of decision the applicant is receiving F$808.01 per fortnight for the parliamentary pension and F$123.60 for the military pension (T1, Folio.43).  This amounts to $1739.62 in Fijian dollars every month. 

20. The Tribunal accepts the applicant’s claim that she is currently dependent upon the relevant Australian relative, her son.  The Tribunal notes the applicant has been residing with her son since her arrival in Australia in October 2016.  The applicant claims her son provides her with free accommodation, food and money for other expenses since her arrival in Australia.  The applicant is residing with her son, his wife and their five children. The applicant and her son were consistent with their oral testimony concerning the applicant’s living situation since her arrival in Australia.  The Tribunal on the evidence before it accepts that the applicant is reliant upon her son for food, clothing and shelter at the time of decision and has been reliant upon him since her arrival in Australia over two and a half years ago. 

21. The Tribunal notes however that for the applicant to be dependent upon her son, the Australian relative, within the meaning of r.1.05A she must be at the relevant time and for a substantial period immediately prior to that time, wholly or substantially reliant upon her son for financial support to meet her basic needs for food, clothing and shelter (r.1.05A(1)(a)(i)); and her reliance on her son must be greater than any reliance on any other person, or source of support, for financial support to meet her basic needs for food, clothing and shelter (r.1.05A(1)(a)(ii)). 

22. The Tribunal has examined the period of time the applicant was not residing with the sponsor in Australia in the ‘substantial period’ immediately prior to the relevant time when she resided in Fiji.  The Tribunal notes that the delegate interpreted a ‘substantial period’ immediately prior to the applicant’s visa application to be a three year period (as per Departmental guidelines (PAM3)).  The Tribunal notes 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.’

23. The applicant told the Tribunal she has six children: apart from the sponsor, one lives in Newcastle, NSW whilst others live in Scotland, the United States and Fiji.  The applicant claimed that her other five children have provided her with no financial support or assistance. No statutory declarations or other evidence have been provided to the Tribunal from the applicant’s other children about their lack of support, though the Tribunal notes the applicant’s daughter in Fiji did permit the applicant to remain in the family house after it was transferred into her name and prior to the applicant departing for Australia in October 2016 to live with the sponsor. The Tribunal also notes the applicant in a declaration to the Department wrote that one of her other sons Tevita had visited her once in February 2017 and in Fijian tradition brought food items worth about $100 for the applicant and her son the sponsor’s family (D1, Folio.201).     

24. The Tribunal asked how she was reliant upon her son the sponsor prior to the lodgement of her application.  The applicant said it was mainly financial dependence on her son as she was still paying off the mortgage and virtually all her income went towards the mortgage on the family home in Fiji.  The applicant said that for all of her everyday living expenses for food, clothing and shelter she was entirely dependent upon her son the sponsor. 

25. The applicant claimed she was relying on her son for food, clothing and shelter in the period she still lived in Fiji.  The applicant said financial transfers were made from Western Union or MoneyGram.  She also claimed relatives visiting from Australia would provide her with cash from her son. 

26. The applicant said in 2017 she was receiving F$702 a fortnight.  She claimed it is all going to the mortgage on the family home in Fiji.  The Tribunal notes the applicant’s Westpac Bank accounts that confirm nearly the applicant’s entire fortnightly Parliamentary pension is repaid to Westpac as part of their mortgage over the property (T1, Folio.42-44).  The applicant said her daughter in Fiji is also paying some of the mortgage.  She said her daughter now lives in the property with her son-in-law.   

27. The Tribunal asked the applicant when she became dependent upon her the son the sponsor.  She claimed in oral evidence that the sponsor commenced providing financial assistance prior to the death of her husband in 2010.  She said her son had been living with them and contributing to the household finances through his employment in biosecurity.  The applicant said that her son had stepped up his assistance to her after the death of her husband. 

28. The applicant’s argument to the Tribunal is that her mortgage payments for the family home – which the Tribunal notes is now in the name of the applicant’s daughter - takes up the entirety of her income. 

29. The Tribunal asked the applicant what she was spending on food, clothing and shelter per month when she was in Fiji.  The applicant responded approximately F$500 per month. 

30. The Tribunal asked the applicant what financial support she receives from her son.  The applicant said all her needs today were met by her son.  The Tribunal asked the applicant about the period when she was in Fiji just prior to coming to Australia.  The applicant claims the sponsor was paying between $200 and $500 per month to her in Fiji.  She said this amount was being provided by her son since he arrived in Australia in September 2014.  She said the applicant started working and commenced sending money consistently in 2015.  The applicant also claimed a sum of F$5,000 her son lent to a friend was also provided by to her in cash when the individual repaid the funds directly to her.  The Tribunal notes the statutory declaration which was provided from Mr Sukanavere stating he provided the funds to the applicant just before Christmas 2014 (T1, Folio.51). The applicant said in oral evidence she utilised that money to look after herself and her needs until the New Year.   

31. The Tribunal noted the evidence of transfers of monies from the sponsor to the applicant prior to her arrival in Australia: four transfers from the sponsor to the applicant in April 2016; 1 in September 2016 and 1 in October 2016.  The Tribunal also notes evidence of MoneyGram transfers: from September 2015 until November 2015 there were two transfers from the sponsor to the applicant amounting to around AUD$300 (D1, Folio.196) whilst there are a further 6 transfers from the sponsor to his sister from February 2016 until October 2016 which the sponsor claimed in his statutory declaration was money for the applicant.  .  The sponsor claimed the monies were provided to his sister rather than his mother because the applicant was unable to walk due to serious arthritis (D1, Folio.195-196). The applicant in her statutory declaration has furthermore claimed that when her daughter was not available in Suva then the sponsor sent the money to someone else on her instructions that took the funds and gave it to her (T1, Folio.53).  The Tribunal notes that the applicant provided evidence of some 19 money transfers between September 2015 and October 2016.    

32. The Tribunal noted from the decision record that the applicant provided that the applicant applied for permission to work on 23 May 2017.  The applicant said she had wanted to work in order to assist the family.  The applicant said that she was granted the work permission but she was now unable to work because of her age and issues with her knees. 

33. At the hearing the Tribunal raised with the applicant the delegate’s request in June 2017 that she provide evidence of her financial dependency on her son the sponsor for the three year period prior to the lodgement of her visa application in January 2017.  The Tribunal noted that the applicant had provided copies of Jetstar invoices and her legal fees and asked what other evidence she had of her dependency.  The applicant talked about how her son provides her with specific foods she needs and various home comforts. 

34. The applicant explained to the Tribunal the history of the property to which she is spending almost her entire Parliamentary pension on.  The house was first purchased by her husband in 1983. 

35. According to the applicant’s written submissions the house was paid off in 2005 but in 2006 the applicant’s late husband took out a loan to renovate the property which resulted in a new mortgage which she became responsible for upon his death in March 2010.  The applicant received a default notice from the bank in October 2013.  The applicant said in oral evidence that she had been making payments up until this period of F$500 per fortnight whilst retaining $200 for living expenses.  These payments however were not enough to sustain the mortgage payments the bank required which she claims was around F$2,300 per month.  The applicant said that she was the only member of the family making mortgage payments.  She said in oral evidence she and her family went to the bank to discuss how they could pay the mortgage and retain their property.  The applicant said that she had to increase her payments to the bank to F$700 per fortnight and became more reliant upon her son as she had to now utilise the monies she previously used for food on the mortgage.        

36. In the written submissions the applicant has claimed that the house had great sentimental value and her late husband wanted the property to remain in the family and not be disposed of.  The applicant claims that servicing the mortgage became intolerable and financially unsustainable.  The Tribunal notes that the sponsor did apply for a loan in an attempt to retain the property for the family but was refused.  The applicant claims that the bank would have foreclosed on the mortgage if she had not entered into an arrangement for her daughter and son-in-law – each of whom worked for the bank with the mortgage over the property, Westpac - to take over the mortgage which they did in May 2016.  The applicant claims that she made a verbal agreement with her daughter that she would continue to put F$500 per fortnight from her pension into the mortgage as part of the agreement.  The Tribunal notes that the applicant has continued to make these payments and indeed increased the amount to almost her entire Parliamentary payment.    

37. The applicant said that she continued to be the sole individual paying the mortgage in the family until her daughter started assisting with mortgage payments after the property was transferred into her name in 2016.  The applicant said that she was able to remain living in the property until she departed for Australia in 2016.

38. The applicant said that after the sponsor left Fiji in September 2014 until her arrival in Australia he sent around $500 per month totalling around $9,000 over the eighteen months.  These funds were sent via transfers, MoneyGram’s and he provided her with funds when she visited Australia of around $1,000. 

39. The Tribunal asked the applicant how much someone needed in Fiji for their basic needs for food and clothing.  The applicant replied that it was F$200 to F$300 per fortnight.  The applicant said that she had no money however left over for such costs after her daughter took over the mortgage on the family residence as she was by then paying virtually her entire Parliamentary pension to the mortgage.

40. The Tribunal asked the applicant, noting that she is paying half the mortgage on the family home, if her daughter would be providing her with food and clothing if she returned to Fiji. The applicant claimed her daughter, who has three children, would not be able to afford to do so.  The Tribunal noted that the applicant lived at the property with her daughter for part of 2016 after the transfer of the property to her daughter’s name.  The applicant in response to the Tribunal’s questions claimed that whilst she did not pay rent, her daughter had not provided assistance for necessities like food and clothing at that time.    She said at that time she was reliant upon financial assistance from her son the sponsor for her basic needs. 

1. The applicant is receiving over $1700 a month via her Parliamentary pension and her military pension.

2. The applicant agreed that prior to coming to Australia she was receiving around F$500 from her son and was receiving over F$1,500 per month via her combined Parliamentary and military pensions.  The Tribunal pondered at the hearing how the applicant, based on these figures, was more financially reliant upon on her son the sponsor rather than her own pensions given the pensions were three times the amount she claimed to be receiving from the sponsor.  The applicant said that this was a correct observation.  The Tribunal noted the applicant’s argument appeared to be that she was reliant on her son the sponsor for her basic needs as almost her entire income was going towards the mortgage on the family home that was now occupied by her daughter.  The applicant said that the house was her whole life and she wanted to keep it in the family. 

3. The Tribunal asked the sponsor a range of questions concerning the support he provides the applicant. The sponsor said his mother became financially reliant and dependent on him in 2010 after the death of his father and the Parliamentary pension was cut in half.  This event impacted adversely upon his mother’s ability to service the mortgage on the family home as well as her own living expenses.  The Tribunal asked the sponsor about his mother’s dependence and the support he provided in the years leading up to the lodgement of her visa application in January 2017.  The sponsor said he had lived with his parents since 1983 and lived at the family home until he came to Australia in 2014. He said he had taken on a greater burden since the death of his father.  The sponsor said after he moved to Australia he was sending money to the sponsor.  He said he was sending on average about $500 per month to the applicant from the time he arrived in Australia in October 2014 until the applicant came to Australia in November 2016.  He pointed out that he had ensured his friend in Fiji who owed him money paid the F$5,000 debt directly to his mother in late 2014 which was to help her with her basic needs.  He said that during the applicant’s two three-month visits to Australia between 2014 and 2016 he provided her with $1,000 to take back to Fiji to help fund her basic necessities.  The sponsor claimed that six or seven times he gave relatives between F$300 to F$500 to give to his mother when they were visiting or returning to Fiji.  The Tribunal notes the applicant has provided evidence that she opened up a bank account with the assistance of the sponsor in July 2018 and regular deposits of AUD$25 a fortnight are made by the sponsor to the account (T1, Folio. 42-44) which is to be spent at the applicant’s discretion.  Both the applicant and the sponsor have stated that in its totality, the sponsor was providing around $500 a month on average for her basic needs to the applicant until she came to Australia in November 2016 and began residing with her son.  The Tribunal notes the lack of corroborative evidence of much of these payments being made to the applicant  - and acknowledges the applicant’s claim in her written submission that many of these were ‘informal transactions’ lacking a receipt (T1, Folio. 48) but on the consistent oral testimony of the applicant and the evidence which has been presented is in the circumstances prepared to accept this claim of financial support.  The Tribunal notes from the decision record the applicant provided that the applicant provided to the delegate receipts for air tickets, passport photographs, a walker, legal and visa fees as further evidence of her financial dependency on the sponsor.  The Tribunal notes these items are not considered to be basic needs under Regulation 1.05A and has given them no weight.       

4. The sponsor said that his sister – whose name the property is now in – never assisted in supporting the applicant with the mortgage or for her basic needs for food, clothing and shelter.  He said that she still does not do so today.  He said that his sister is nevertheless today paying around 75% of the mortgage (which is around F$3,600 a month) themselves today.    

5. The sponsor stated that his mother had to rely upon himself to fund her basic necessities for food and clothing due to the fact that almost her entire income from the Parliamentary pension was going to the mortgage for the family home.

6. The applicant and sponsor both stated that there is no one outside of the family that has provided any final assistance to the applicant.    

7. The Tribunal notes that the circumstances of this application are somewhat unusual.  The Tribunal notes that a significant amount of the corroborative evidence of the applicant’s reliance upon her son to meet her basic needs for food, clothing and shelter is reliant upon statutory declarations from the sponsor, applicant and other parties (ie the sponsor’s friend who paid back F$5,000 to the applicant rather than the sponsor) that claim to have provided financial support to the applicant.

8. The Tribunal nevertheless found the applicant to be an honest, straightforward and genuine witness.  The Tribunal is inclined to accept on this occasion her arguments (and those of the sponsor) that a significant amount of financial support the sponsor provided to the applicant was done via third parties either in person or via MoneyGram.  The Tribunal has no doubt that the applicant at the time of decision is wholly or substantially reliant upon her son the sponsor for financial support to meet her basic needs for food, clothing and shelter.  Despite the limitations of the corroborative evidence – and the need for the Tribunal to accept the applicant’s assertions – the Tribunal is prepared to accept that the applicant was substantially reliant upon the sponsor in order to meet her basic needs for food and clothing for a substantial period of time immediately prior to making the application. 

9. The Tribunal notes the sponsor’s long history of residing with his mother – including after the death of her husband in 2010.  The Tribunal notes the applicant has been to visit the sponsor twice in Australia since his arrival in 2014.  The Tribunal on this occasion considers the evidence of the sponsor’s support today speaks to his support – and the applicant’s reliance upon her son – for a substantial period immediately prior to the making of this application.          

10. The Tribunal finds that the applicant was at the relevant time and for a substantial period of time immediately prior to that time was wholly or substantially reliant on her son the sponsor for financial support to meet her basic needs for food, clothing and shelter: r.1.05A(1)(a)(i)

11. The Tribunal however is unable to find that the applicant meets r.1.05A(1)(a)(ii) which requires the applicant’s reliance upon her son is greater than any reliance on any other person, or source of support, for financial support to meet her basic needs for food, clothing and shelter. 

12. The Tribunal accepts that the applicant is contributing almost the entirety of her income from her Parliamentary and military pension to the mortgage which exists over the family property which is now in the name of her daughter.  The Tribunal accepts that this has been the situation now since the death of her husband and indeed the quantum she provides has only increased.  The Tribunal has a considerable degree of sympathy for the applicant and her indefatigable efforts in trying to keep the family home in the family’s name.   The Tribunal accepts the arguments that have been made to it concerning the importance of the residence and the very high priority the applicant has in maintaining the residence in the family’s name.  The Tribunal notes the applicant’s late husband’s significant record of long-standing public service to the Fijian nation and understands the desire of the applicant to maintain the house he built in the family.   The Tribunal accepts that the considerable financial burden the mortgage creates has precipitated a situation whereby the applicant is reliant upon her son the sponsor for financial support to meet her basic needs for food, clothing and shelter.

13. The Tribunal nevertheless must take account of the fact that the applicant has been and continues to receive via her Parliamentary and military pension an amount that vastly exceeds that which she claims to receive from the sponsor.  The Tribunal notes that at the time of the delegate’s decision in October 2017 the applicant provided evidence that she was receiving $702.62 fortnightly from her Parliamentary pension and $123.60 a month from her military pension.  This amounted to $1528.84 per month.  In her oral testimony to the Tribunal the applicant agreed that she was receiving approximately $500 a month from her son the sponsor whilst receiving over $1,500 per month via her combined Parliamentary and military pensions.  The sponsor in his oral testimony stated that after he moved to Australia in October 2014 until the applicant arrived in Australia in November 2016, he was providing on average $500 a month to his mother the applicant. 

14. At the hearing the applicant stated that she lived in the family home until she departed for Australia in October 2016 and did not pay rent at all during this time.  As stated in the decision record the applicant provided, the property was transferred to her daughter in May 2016.  The applicant was paying the mortgage during this period and continues to do so today.  The applicant was therefore reliant upon her own income via her two government pensions to meet her shelter between May and October 2016 and previously when the property was in her own name.  The Tribunal accepts that she was also receiving financial support from her son the sponsor to meet her needs for food and clothing at that time.  This reliance upon her son – who both the sponsor and the applicant concede was providing approximately $500 per month – was significantly less than her Parliamentary and military pension that was around three times at over $1,500 per month. 

15. The Tribunal finds that the applicant was receiving significantly less in financial support to meet her basic needs for food, clothing and shelter from the sponsor than what she was receiving from the Fijian Government via her Parliamentary and military pensions.  The Tribunal notes that the applicant also arguably received support from her daughter for accommodation by continuing to reside there rent-free after the property was transferred into her daughter’s name (albeit for a relatively short period in 2016). 

16. The Tribunal finds that the applicant’s reliance upon her son the sponsor is not greater than that on any other person, or source of support, for her financial support to meet her basic needs for food, clothing and shelter.  On the evidence before it the Tribunal finds that the applicant was significantly more reliant upon her Parliamentary and military pensions as a source of support at over $1,500 per month than the approximately $500 per month she has claimed to have received from the sponsor.  The Tribunal finds the applicant is unable to meet r.1.05A(1)(a)(ii)   

17. Regulation 1.05A (1) may be also satisfied if the applicant is wholly or substantially reliant on the other person for financial support because the applicant is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions (1.05A(1)(b)).  The Tribunal put the question to the applicant at the hearing.  The applicant said that her age and her bad knees essentially made working difficult.  She said that she was healthy at the time she applied for the visa.  The Tribunal notes that the applicant also applied for work rights – which were granted – in 2017.  The Tribunal accepts that the applicant is having some issues with her knees and is on the waitlist for a knee replacement (T1, Folio.45).  The Tribunal is not however satisfied that the applicant is incapacitated due to the total or partial loss of her bodily or mental functions.  The applicant does not meet 1.05A (1)(b).      

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

19. 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 for the purposes of cl.838.212.

20. For the reasons above, the Tribunal finds that the applicant does not meet the criteria for a Subclass 838 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.

21. There is no evidence before the Tribunal that at the time of application the applicant claimed to be a carer of an Australian relative, as required by cl.836.212, nor that the application was accompanied by satisfactory evidence that the relevant medical assessment has been sought, as required by Item 1123B(3)(d) of Schedule 1 to the Regulations. The applicant is therefore not entitled to the grant of a Subclass 836 (Carer) visa.

22. The Tribunal finds that the applicant is not entitled to the grant of Subclass 835 (Remaining Relative) visa as the applicant’s near relatives, as defined in r.1.15(2), reside in the same country as the applicant: the applicant’s daughter resides in Fiji. As such, the applicant is not a ‘remaining relative’ of the ‘Australian Relative’ and therefore is unable to meet cl.835.212.

23. The Tribunal has a great deal of sympathy for applicant as well as the sponsor in this situation.  The Tribunal accepts that the sponsor has provided and continues to provide significant care and support to the applicant and at the time of decision is providing significant financial support to meet her needs for food, clothing and shelter.  The applicant has lived with the sponsor and her grandchildren now for a number of years and to all intents and purposes is an important part of the family household.  The Tribunal notes that the applicant, at significant personal and financial cost, has attempted to keep the family home in the family at the behest of her late husband, previously a significant figure in Fijian life.  This single-mindedness has precipitated a situation whereby the applicant was reliant upon her son to meet her basic needs for at the very least food and clothing.  The Tribunal notes that despite this reliance, it was not under the legislation greater than her reliance on her Parliamentary and military pensions to meet her basic needs.    

24. The Tribunal has considered whether to refer this case to the Department for consideration by the Minister pursuant to s.351.  This legislation gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.  The Tribunal has carefully considered the applicant’s circumstances and the claims made by the applicant.  The Tribunal considers the circumstances of the parties and considers they may be unique or exceptional.   The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and has decided to refer the matter to the Minister for his consideration. 

    DECISION

25. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Justin Owen
    Senior Member