Kweh (Migration)

[2021] AATA 2562

Kweh (Migration) [2021] AATA 2562 (26 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Teow Soo Kweh

CASE NUMBER:  1835717

HOME AFFAIRS REFERENCE(S):          CLF2017/54806

MEMBER:Andrew McLean Williams

DATE:26 May 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 838 (Aged Dependent Relative) visa:

·cl 838.212 of Schedule 2 to the Regulations.

Statement made on 26 May 2021 at 10:14am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – dependency – financial support to meet applicant’s basic needs for food, clothing and shelter – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A; Schedule 2, cls 838.212

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 the review of a decision made by a delegate of the Minister for Home Affairs, made on 22 November 2018, refusing to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The applicant is a 78 year old widow, from Malaysia.  The applicant’s husband died in 1971 and she never re-partnered.   The applicant’s youngest son, Mr Chon Teik Khor, has sought to sponsor his mother to come and live out her remaining years with he and his wife and children in Australia, on an Aged Dependent Relative visa. 

3. The applicant applied for the visa on 26 July 2017. In general terms, to now be eligible the applicant must show that she is the aged dependent relative of an Australian citizen, permanent resident or an eligible New Zealand citizen.

4. The specific criteria for a Subclass 838 visa are as set out in Part 838 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Relevantly to this matter, the primary criteria that must met now include those in cl.838.212.

5. The delegate refused to grant the visa on the basis of the delegate not being satisfied on the available evidence that the applicant had been dependent on her son - who is an Australian permanent resident - during the three years immediately preceding the lodgement of the aged dependent relative vias application, which was lodged on 26 July 2017.

6. The applicant appeared before the Tribunal on 20 May 2021 to give evidence and make submissions. The Tribunal also received oral evidence from Mr Chon Teik Khor, who is the applicant’s son and sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Teo Chiew and English languages.

7. The applicant was represented in relation to the review by her registered migration agent Ms Cindy Zhao of ‘No Borders’ Migration (MARN 1575764). Ms Zhao also attended the Tribunal hearing and had prepared detailed written submissions (dated 16 November 2020) and other documentary evidence in support of the application for review which were lodged with the Tribunal well before the hearing of this application for review.

8. For the reasons that now follow, the Tribunal has come to a contrary conclusion to that reached by the delegate.  The Tribunal has concluded that the evidence does show that Teow Soo Kweh had been substantially dependent on her son Mr Chon Teik Khor for a reasonable period prior to the making of the visa application and that the applicant has remained similarly dependent on her son thereafter and remains so dependent as at the date of this decision. 

9. In this light the Tribunal concludes that the matter should now be remitted to the Department for reconsideration by a delegate in light of the Tribunal’s conclusion.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

10. 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 reg 1.03 of the Regulations.

11. A person will be an ‘aged dependent relative’ of another if: they are a ‘relative’ within the meaning of reg 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 (Cth).

12. In this case the applicant is a widow, now aged 78 years.  The applicant is the mother of her sponsor Mr Chon Teik Khor, who is an Australian permanent resident.  As such she qualifies as a ‘relative’ of an ‘Australian relative’.  Given that the applicant was aged 73 at the time of her making the visa application she was also of an age at which, were she an Australian citizen she could be granted an aged pension under the Social Security Act 1991.  As such the age requirements specified in 1.03(c) to be eligible for this category of visa have been satisfied, as well.

    Does the applicant have a spouse or de facto partner?

13. As indicated above, the evidence reveals that the applicant is a widow, now aged 78.  The applicant’s husband died many years ago, in 1971, when the applicant was aged just 27.  The applicant never re-married, and does not have a de facto partner. For these reasons subparagraph (a) of the definition of ‘aged dependent relative’ is met both at the time of application and now at the time of decision.

    Is the applicant dependent on the Australian relative?

14. The definition of ‘dependent’ as it applies to this application is set out in reg 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: reg 1.05A(1).

15. Regulation 1.03(b) speaks of the requirement for dependency to have been for a ‘reasonable period’. Under policy, this is taken to mean for at least three years. Yet r.1.05A, which gives meaning to the term ‘dependent’ for purposes of r.1.03 then goes on to speak of financial support for a ‘substantial period’, such that there is an apparent tension between r.1.03(b) and r.1.05A. That tension has been harmonised by the courts as reference to a ‘substantial period’ in reg 1.05A has been judicially determined to mean for a period that is no more substantial than a ‘reasonable period’: Huang v MIMIA [2007] FMCA 720 at [47]. Further, the proper construction of ‘dependent’ in reg 1.05A does not carry any implication of the notion of necessity or lack of choice reg 1.05A: Huynh v MIMIA (2006) 152 FCR 576 at [43].

16. The evidence received an now accepted by the Tribunal reveals that the applicant was widowed in Malaysia in 1971 when aged 27 and while the applicant was still pregnant with her youngest son.  The applicant was then forced by these circumstances to raise her five children alone, and to endeavour to support herself and her young family by taking unskilled work in a garment factory.  The applicant had three daughters and two sons.  One daughter was killed in 2004 in consequence of the Indian Ocean tsunami.  The other two daughters are now both married with children of their own and are engaged in home duties.  Neither daughter has paid employment nor sufficient financial capacity to offer financial support to their mother. 

17. The applicant’s eldest son, Mr Soon Huat Khor left his mother’s home shortly after reaching adulthood.  He is also married with three children, and works as a self-employed truck driver in Malaysia.  Mr Soon Huat Khor is the sole source of income in his household.  His employment is ad hoc in nature such that he often struggles financially and does not have the financial capacity to support his mother in addition to his existing financial and family commitments.

18. The applicant’s youngest son Chon Teik Khor is an electrician by trade and he is married to an accountant.  In comparative terms Chon Teik Khor is in far better financial circumstances  than are his older siblings.  Chon Teik Khor continued to live at home with his mother in Malaysia after the departure of his older siblings and he assumed sole responsibility for her financial support after her retirement from paid employment in 1993, when the applicant was aged about 50.

19. In March 2013, Mr Chon Teik Khor and his wife migrated to Australia, taking up residence in Brisbane.  Thereafter, the applicant lived alone in Malaysia in low cost state housing.  After 2013 Chon Teik Khor continued to provide financial support for his mother and would travel to visit her in Malaysia, at least annually.

20. The applicant has also made several lengthy trips to Australia, each fully funded by her son Chon Teik Khor.  In the three years immediately prior to lodgement of the visa application (26 July 2014 – 26 July 2017) the applicant spent approximately 40% of her time in Australia and the remaining 60% of her time in Malaysia.  When in Australia, 100% of the applicant’s financial needs and travel costs have been met by her youngest son and his wife.

21. During the time in the three years immediately prior to the making of the visa application when the applicant was in Malaysia, the evidence reveals her basic living costs to be the equivalent of about 400RM per month.  This equates to about $1,584AUD per annum. 

22. As the applicant has no state pension in Malaysia, nor any other means of financial support, all of her needs have been met by her youngest son.  Chon Teik Khor would visit his mother in Malaysia at least once each year for a period of several weeks.  Prior to these trips cash withdrawals were made in Australia and then converted into Malaysian Ringgit in order to leave his mother with sufficient cash for her to be able to meet her necessary  living expenses in Malaysia. Chon Teik Khor explained to the Tribunal that his mother does not operate a bank account and is most accustomed to paying for her basic living expenses in cash.  The Tribunal accepts that evidence.  Similarly the Tribunal accepts the evidence that has been produced before it of Chon Teik Khor having provided the equivalent of about $8,400AUD to his mother the applicant over the period between 23 January 2014 and 16 January 2016, and of this money having formed the predominant basis for the applicant having then been in a position to meet all of her basic daily living expenses whenever she was alone in Malaysia during the three years prior to the making of the visa application on 26 July 2017.  

23. The applicant is currently living in Brisbane with her Mr Chon Teik Khor and his wife, and their children.  All of the applicant’s current living expenses are met by her son and daughter-in-law.

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

25. For the reasons set out above, the Tribunal is satisfied that the applicant is the aged dependent relative of an Australian relative at the time of application and the time of decision for the purposes of cl 838.212

26. 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

27. 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.

    Andrew McLean Williams
    Member