Kumar (Migration)

[2017] AATA 975

Kumar (Migration) [2017] AATA 975 (15 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Saroj Mati Kumar

CASE NUMBER:  1609505

DIBP REFERENCE(S):  CLF 2015/11281 CLF 2015/41326

MEMBER:Michael Cooke

DATE:15 June 2017

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 15 June 2017 at 1:17pm

CATCHWORDS

Migration – Other Family (Residence) (Class Bu) visa – Subclass 838 (Aged Dependent Relative) – Dependency requirements – Wholly or substantially reliant on sponsor – Credibility issues – Lack of transparency in claims – Lack of evidence of dependency

LEGISLATION

Migration Act 1958, ss 65, 359A

Migration Regulations 1994, Schedule 2, cl 838.212, cl 838.227, r 1.05A, r 1.03

CASES

Huang v MIMA
Fernandez v MIBP

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 10 June 2016 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 13 July 2015. 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 applicant did not meet the dependency requirements of reg.1.05A.

4.    The applicant appeared before the Tribunal on 22 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor (Ajay Deo Prasad) and Ms Pauline Shankar.

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

6. An Invitation pursuant to s.359A was sent to the application based on adverse information in the Department file as follows:

7.    The particulars of the information are:

• Information provided to the Department of Immigration and Border Protection contradicts your statement to the Tribunal (in the hearing) that you did not have any income from real estate in Fiji and indicates that you are, in fact, the owner of several flats in Fiji which you rent out.

• Information provided to the Department of Immigration and Border Protection contradicts your statement to the Tribunal (in the hearing) that you do have income other than your retired teacher’s pension. The information indicates you receive money from a life policy which you inherited from your late husband along with money from his pension fund.

• Information provided to the Department of Immigration and Border Protection indicates that contrary to information provided to them and the Tribunal the information indicates you are not actually living at your stated address (16Tabletop Circuit Horningsea Park NSW 2171).

This information is relevant to you because (if true) it may indicate that you are not “wholly or substantially reliant” on your sponsor (Ajay Deo Prasad) for you ‘basic needs’.

This, in turn, is relevant to you because it would indicate that you may not meet the definition of dependent on your sponsor - as required by reg.1.05A.

Relevantly, if you do not meet the definition of dependent in reg.1.05A you will not (inturn) meet the criteria in cl.838.212 of the Regulations for an ‘aged dependent relative ‘visa.

This information is further relevant because (if true) it may lead the Tribunal to a finding that you are not a credible witness and that your evidence is not truthful and, therefore, information you have given the Tribunal is not truthful or reliable.

Overall the above information in bullet points is relevant to you because, if you do not satisfy the Tribunal that you meet the criteria for a Subclass 838 visa, the Tribunal will be obliged to affirm the decision to refuse you a Subclass 838 visa.

8.    The applicant responded to the Invitation providing rebuttal by way of Statutory Declarations and also additional information (T1, ff.66-72).

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

CONSIDERATION OF CLAIMS AND EVIDENCE

The Hearing

1. The Tribunal asked the applicant whether she received a Fijian pension from the ‘provident fund’. She responded that she did from her time as a school teacher. She received FJ$316 or approximately AUD$51 per month. She did not receive a death benefit. She did not receive an aged pension or other payment from the Fijian Government. She did not receive any rent from a 3 bedroom house that she owned. Her daughter and son-in-law lived there they did not pay rent. There was no other payment coming from Fiji. Her sister in Fiji did not contribute anything. She was a widow with 2 boys in Australia and they support her. Her brother in Melbourne did not contribute was in ill health and was wheelchair bound. Her brother (the sponsor) had sent the applicant money from the UAE money exchange in Australia. The Tribunal calculated 20 July 2012 as the date of the reasonable period prior to date of application. 20 July 2015 was the date of application.

2. The sponsor said that he became an Australian citizen in 1991. The applicant came to live with him on 20 August 2014. The applicants said she relied for food and clothing principally on her brother and her pension along with some assistance from deceased relatives. Her brother provided her accommodation gratis since arrival. The applicant explained she came to Australia initially as a carer for her aged mother. The mother lived with the parties as well.

3. The applicant said in the 2 years prior to that date she lived in Fiji at her own home. Her husband passed away in 2005. She inherited her family home which was then mortgage apart from land tax and utilities. The sponsor said her sent money and there were her pension earnings. She managed to pay for food with her income and assistance from her brother and relatives.

4. The Tribunal addressed findings in the delegate’s decision record and observations regarding payments to the applicant during part of the ‘reasonable period’. There was an issue raised that the payments to the applicant were not linked to the applicant except for one to the applicant in 2014. There was no evidence of an overseas bank account being used. The Tribunal was informed by the sponsor that there were only 2 ways that money was sent – by money exchange or cash. The applicant did have an ANZ account which was used for her pension payments.

5. The Tribunal noted that the sponsor sent various remittances to Fiji based on Department evidence. The Tribunal asked the sponsor why a big amount of money was sent in 2010 - $15,339, yet the payments tapered down to $3575, in 2011 $1714 in 2012 and $1242 in later years including the ‘reasonable period’. The sponsor said that the big money was spent on repairs to the applicant’s house. The Tribunal observed that there were no UAE money exchange payments in 2013 according to the delegate. One of the witnesses said she took money to the applicant from her brother around AUD$2, 000 and other sums at other times as well.

6. The Tribunal asked the applicant what was the amount she needed to live on for her basic needs at that time. Was her pension enough for basic needs in Fiji in 2012-14? The applicant said the pension (FJ$316) was not enough. She had some personal savings and what she got from her brother. The Tribunal pointed out that the applicant had to rely on the sponsor for her basic needs and that her reliance on her brother had to be greater than on any other source to meet the definition of ‘dependent’. The witness explained she took cash money from the sponsor for the applicant when visiting Fiji.

7. The Tribunal noted that AUD$1714 represented approximately FJ$2805 at today’s rate. The amount of her pension was fixed she insisted in oral evidence. The sponsor did not charge her rent when she came to Australia.

8. The Tribunal asked the applicant what she did with the pension money when she left Fiji. She said it accumulated in her bank account and was used by her daughter for council rates and maintaining costs for the house she left behind. The sponsor paid for everything the applicant was wholly reliant on the sponsor in Australia.

9. The Tribunal then returned to the delegate’s decision record and observed the fact that the claimed payments to the applicant were not directly linked to the applicant - apart from three instances. Her name was not on the documents and she could not prove that she was the recipient of money wired overseas and claimed to have been sent to her by the sponsor. In 2012 there was evidence the sponsor sent one Moneygram for AUD$1662.75 ($FJ2572.73) wired to the applicant specifically. In 2013 the applicant was sent AUD$112.41 (FJ$ 174.02). In 2014 two payments totalling AUD1111.04 ( FJ$1720.19) were sent.

10. The applicant claims she receives FJ$316 per month (AUD$204.20) or FJ$3792 (AUD$ 2450.57) – at 2017 exchange rates.

11. Even allowing for some fluctuation in exchange rates between the years 2012-14 these payments indicate that there was no evidence of ‘substantial’ dependency on the sponsor in the years 2012-14 when juxtaposed with the total annual amount of her Fiji pension. The applicant said the 2014 payment was sent in July 2014. The applicant actually came to live in Australia on 20 August 2014.

12. The witness (Ms Pauline Shankar) said she had told their representative and signed declarations to the effect that when they went to a wedding in Fiji she took money to the applicant. The Tribunal has found no evidence of this on the Departmental files and thus gives this claim no weight.

13. The Tribunal asked who else would receive the money if it was not the applicant who was the recipient. If her name was not on the receipt who then picked up the money? The witness suggested it was sent to a brother or the applicant’s late mother. Their mother was probably the recipient and it went into her account. This information had been destroyed she said on her death. She went back to Fiji to die and stayed 3 months and then returned to Australia where she later demised. She was there in 2013 and 2014. The money was then transferred to the applicant. The witness insisted that each time they went to Fiji they took around AUD$2000 for the applicant. The applicant said that she went with her mother to assist her.

14. The visa application was made on the basis that the applicant is the aged dependent relative of Ajay Deo Prasad 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).

15. In this case Ajay Deo Prasad is a citizen and is the applicant’s brother.

Are the sponsorship requirements met?

1. Clause 838.213 requires that at the time of application the applicant is sponsored by the ‘settled’ Australian relative, or the spouse or where relevant, the de facto partner, of the Australian relative, who has turned 18. The ‘Australian relative’ must be an Australian citizen, permanent resident or eligible New Zealand citizen, and the person of whom the applicant is an aged dependent relative.

2. If the applicant is sponsored by the spouse or de facto partner, that person must cohabit with the Australian relative and must also be a settled Australian citizen, permanent resident or eligible New Zealand citizen. At the time of this decision the sponsorship must be in force: cl.838.227.

3. The terms, ‘settled’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations. ‘Spouse’ is defined in r.1.15A (for visa applications made before 1 July 2009) and s.5F of the Act (for visa applications made after on or that date). ‘De-facto’ partner is defined in s.5CB of the Act.

4. The Tribunal finds that the visa applicant is sponsored by the Australian relative mentioned in cl.838.212. The relative has turned 18. The relative has indicated in oral evidence he has been in Australia since 1991. The Tribunal finds that the relative is a settled (ie lawfully resident for a reasonable period) Australian citizen.

5. Therefore, at the time of application the applicant was sponsored in accordance with the regulations and, therefore, satisfies cl.838.213. As the sponsorship is now in force, the applicant satisfies cl.838.227.

6. The Tribunal has considered the applicant’s oral evidence and that of her witnesses in the hearing. The Tribunal shares the concern of the delegate with the claim of dependency by the applicant in the ‘reasonable period’ prior to the time of application. It appears that the applicant claims that she received a limited income from her teacher’s provident fund/pension in the amount of FJ$3720 per annum. She claimed that she receives no rent from her 3 bedroom home in Fiji and that she allows her daughter and son in law to stay there on a grace and favour basis according to her oral evidence. She claimed to be reliant on remittances from the sponsor.

7. Following the Invitation pursuant to s.359A she has admitted in rebuttal that she does not “have separate flats to rent out. But I have small rooms added to my building which is occupied by my husband’s family members. They don’t pay rent but they help my daughter and son in law in maintaining the house and compound”.

8. The Tribunal is not satisfied with the applicant’s response. She has not been entirely transparent with the Tribunal in her oral evidence about her Fiji house. She initially informed the Tribunal that her daughter and son-in-law lived there. Now it appears there are other family members living there. The only evidence that she does not draw rents from the properties is the Statutory Declaration of a relative she has presented. The Tribunal gives this claim little weight The Tribunal finds this document to be a little too co-incidental when juxtaposed with the adverse information. The Tribunal has weighed up the lack of frankness of the applicant and her failure to be transparent in oral evidence with the allegation. The Tribunal has decided to gives the adverse information that she received alternative income significant weight.

9. The applicant was adamant in her oral evidence that she had no other sources of income. However, it has now surfaced (in response to the adverse information) that her husband (according to her Statutory Declaration) had a B.T. investment which she discloses was promised by him to her grandson to assist with his eye condition. However, her Last Will and Testament (which she has submitted in response to the Invitation) indicates she is the owner of the investment which is to be bequeathed to her grandson on her demise. Logically she would be receiving income from the investment - which she has failed to disclose in her oral evidence. Again this raises a credibility issue for the applicant.

10. She has also claimed in oral evidence that she did not get a death benefit at the demise of her husband. Yet she now admits in her Statutory Declaration that she received $20,000 (presumably Fijian) in life insurance which she used for a variety of activities of a religious and benefactor type - according to her husband’s wishes, she claims. Again this raises a credibility issue for the applicant.

11. In response to the suggestion that she did not live at her claimed address she has claimed she definitely does but because of the large number of family members living nearby “they come and take me to their homes since I have no car. I also have a key of the house in which we are staying. This makes me easy to go and comeback”. Again the Tribunal finds her answer unconvincing and gives the allegation some weight.

12. The Tribunal has looked at the applicant’s responses to the Invitation overall and then juxtaposed the answers with her oral evidence. The Tribunal can only conclude, on balance, that the discrepancies and contradictions in her evidence indicate that the applicant is an unconvincing witness with poor credibility. The Tribunal gives this finding great weight when the applicant’s claims to be ‘dependent’ on the sponsor are assessed.

13. One important issue that arose in the oral evidence was the lack of actual evidence that the applicant had been financially dependent on the sponsor during the ‘reasonable period’ prior to time of application. What then is a ‘reasonable period’ for the purposes of this review?

14. The definition of ‘aged dependent relative’ requires that the visa applicant must be ‘dependent’ on the relative for ‘a reasonable period’ and remain so dependent. In Huang v MIMA the Court noted that the clear purpose of the Regulations was to ensure that the sponsor had a genuine opportunity to support the applicant and had been doing so for long enough prior to the application to demonstrate the alleged relationship of dependence was real and enduring.  In short, ‘substantial period’ should be understood to be a lengthy period.  The Court in Huang contrasted this with ‘reasonable period’ which it noted, need not be lengthy.

15. In reconciling these two differing concepts, the Court concluded that r.1.03 the definition of ‘aged dependent relative’ with its reference to ‘reasonable period’, was the predominant provision and took precedence over the definition of ‘dependent’ in r.1.05A. ‘Reasonable period’ is not defined in the Regulations and has been the subject of limited judicial consideration. In Huang v MIMA, the Court commented that it need not be a lengthy period and that individual circumstances will affect what amounts to a reasonable period.  In Fernandez v MIBP, the Court found no error in the Tribunal’s statement that, in the particular facts of that case, ‘…any assessment of a reasonable period when the applicant has been dependent upon the sponsor must include a period of time prior to this arrival in Australia, when he was resident in Uruguay’.

16. Departmental guidelines (PAM3) interpret a ‘reasonable period’ in this context as being three years, or a lesser period if otherwise satisfied that the applicant has received ongoing support from the Australian relative. However, this interpretation is difficult to reconcile with the Departmental guidelines on r.1.05A, which state that a ‘substantial period’ for the purpose of assessing r.1.05A is a period of ‘at least 12 months’. This is particularly so in light of the finding in Huang v MIMIA that the term ‘substantial period’ in r.1.05A is to be read down to mean a period not more substantial than a ‘reasonable period’. In any case the Tribunal is not bound by policy.

17. The Tribunal has examined the personal situation of the applicant. It must be remembered that prior to making the application (on 13 July 2015) the applicant had already been living in Australia whilst an application for a Carer visa (for her mother ‘the caree’) was being processed. This was truncated by the demise of her mother and the applicant proceeded then to apply for the ‘aged dependant relative’ visa (the subject of this review). She arrived in Australia on 20 August 2014. Thus she was already living nearly a year in Australia prior to application for the visa and she claims that in that period she was wholly reliant on the sponsor for her ‘basic needs’.

18. According to the Courts ‘any assessment of a reasonable period when the applicant has been dependent upon the sponsor must include a period of time prior to this arrival in Australia’. It follows from this rubric (Fernandez) that the ‘reasonable period’ must extend before 20 August 2014 to be at a time when the applicant was actually living in Fiji. The Tribunal finds - relying on the rubric in Huang and Fernandez - that the ‘reasonable period’ in the individual circumstances of the case should be calculated as being from 2012.

1. The reasons given by witnesses for the failure of the applicant in general to be able to verify she was the actual recipient of funds sent by money exchange was that moneys had been sent to her late mother (when she was in Fiji). They claimed in oral evidence that they went to get the money together or alternatively it had been sent by cash through family members to the applicant. There was, for instance, no evidence of the funds being sent to a bank account despite the applicant indicating that she had an ANZ account in Fiji in oral evidence. There were a number of linked payments to the applicant in 2012, 2013 and 2014 (part of year) but the payment to the applicant was just AUD$112.41 in 2013. The exchange rate of AUD$112.41 into FJ$ in 2017 equals FJ$173.54. This is considerably lower than the applicant’s income from her pension and represents less than one month of her pension. The applicant informed that her present pension amount is the same as in 2013.

2. The Tribunal finds this evidence to be significant and remarkable. Sending money by Western Union for instance is acknowledged to be expensive due to the high imposts on the transactions. The Tribunal finds it remarkable that the applicant did not receive remittances through the simple means of a bank account which was readily available. Such a method would be failsafe and such information accessible for the purposes of review. At the same the evidence of dependency on the sponsor through wired money in that year is not present. None of the alleged cash delivery transactions by family members which could account for situation of ‘substantial reliance’ on the sponsor can be verified - according to the witnesses at the hearing.

3. The Tribunal remains unconvinced that (but for a couple of named recipient transactions evidenced by the sponsor to the applicant) there was proof that she was ‘wholly or substantially reliant’ on the sponsor for her basic needs and ‘for a reasonable period’ prior to the date of application for the visa - the subject of this review. The Tribunal finds that the applicant’s self-evident poor credibility needs to be juxtaposed with the claims that prior to coming to Australia she was financially ‘substantially reliant’ on the sponsor for her ‘basic needs’. The Tribunal has weighed the oral evidence from an extensive hearing (in which the nature of dependency was outlined to the parties present) against the information provided by the applicant in response to an Invitation pursuant to s.359A and in the delegate’s decision record on the Tribunal file.

4. The Tribunal is not satisfied, on balance, that the applicant is a credible witness and does not accept that her claim to be ‘substantially dependent’ on the sponsor for a ‘reasonable period’ prior to the date of application is valid. Therefore, she does not meet the definition of ‘dependent’ in reg.1.05A and subsequently for the purposes of reg.1.03 and cl.838.212 of the Regulations.

5. Furthermore, the Tribunal has no evidence before it that the applicant is reliant on the sponsor for financial support because she is incapacitated for work due to the total or partial loss of her bodily or mental functions. Therefore, the applicant does not meet the definition of ‘dependent’ in reg.1.05A(1)(b) either.

6. 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.  

DECISION

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

Michael Cooke
Member