Lee (Migration)

[2021] AATA 1197

Lee (Migration) [2021] AATA 1197 (16 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kwai Fong Lee

CASE NUMBER:  1822989

HOME AFFAIRS REFERENCE(S):          CLF2016/90947

MEMBER:Nicholas McGowan

DATE:16 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made 16 March 2021 at 1:48pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – aged dependent relative of an Australian relative – dependent on the Australian relative for a reasonable period – wholly or substantially reliant on the sponsor – substantial bank accounts – referral for Ministerial Intervention – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2 cls 838.111, 838.212, 838.221; rr 1.03, 1.05
Social Security Act 1991

CASES

Huang v MIMIA [2007] FMCA 720

Huynh v MIMIA (2006) 152 FCR 576

MINISTERIAL INTERVENTION

1. This Tribunal passionately refers this case to the Minister pursuant to s.351 of the Act.

2. This Tribunal is satisfied that because the applicant does not meet the requirements (as set out below) she has been unable to meet the criteria for the grant of the visa.

3. The applicant is an 84-year-old lady and much-loved member of her family (which is small though clearly take care and responsibility for her). The applicant lives with her 99-year-old sister, and 62-year-old niece (who cares for them all). Both the 99-year-old sister, and 62-year-old niece, are Australian permanent residents.

4. The applicant is one of nine children, though only her 99-year-old sister (in Australia) and a brother who is 91 (who lives in Singapore) are alive.

5. The applicant travelled to Australia in 2016 and has lived with her 62-year-old niece and 99-year-old sister ever since.

6. The applicant has never been married or been in a de facto relationship and has lived a somewhat rudimentary (humble) life.

7. The applicant has deteriorating eyesight and becomes more easily confused and disorientated with age according to the niece’s oral evidence provided during the hearing before the Tribunal held 16 March 2021. The niece (sponsor) puts the view that her aunt (the applicant) would find living by herself in Singapore extremely difficult at this stage of life, particularly given much of her life is supported by herself and those around her. The Tribunal accepts this at face value and finds the sponsor’s evidence in this regard to be heartfelt, and candid, and therefore reliable.

8. The Tribunal considers that the circumstances of this case will raise the following matters:

   Strong compassionate circumstances such that a failure to recognise them would result in emotional hardship to several Australian permanent residents.

9. Having regard to the circumstances of the applicant and sponsor as outlined above and having considered the Ministerial guidelines relating to the Minister's discretionary power under section 351 set out in PAM3 "Minister's guidelines on ministerial powers (sections 345, 351, 417, 454 and 501J)" this Tribunal considers this case should be referred to the Minister.

10. This Tribunal considers should the applicant be compelled to return to Singapore it could have an adverse psychological impact on the sponsor and her 99-year-old mother (the applicant’s only remaining sister).

11. However, these are not matters that this Tribunal is able to take into account in making its decision in relation to the review of the subclass 838 visa application.

12. As the applicant does not satisfy an essential criterion for the visa, the Tribunal has no choice but to affirm the decision under review. Only the Minister has the discretion to intervene and take these circumstances into account.

13. It is the sincere hope of this Tribunal that the Minister makes a more favourable decision in relation to the applicant’s application for the subclass 838 visa.

    WRITTEN STATEMENT

14. On 23 July 2018 a delegate of the Minister for Home Affairs refused to grant the applicant an Other Family (Residence) (Class BU) (Subclass 838) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

15. The applicant applied for the visa on 25 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 (Cth) (the Regulations).

16. As the Tribunal was unable to make a favourable decision on the information before it alone, the applicant was invited to attend a hearing and provide any evidence or arguments. The applicant appeared before the Tribunal on 16 March 2021 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The visa application was made on the basis that the applicant is the aged dependent relative of her niece (and sponsor for the visa) Ms Chan Wei Yin. Relative is defined in reg 1.03 and means a ‘close relative’ which includes niece or nephew (or their step equivalents).

18. In this case the evidence held by the department is that Ms Yin is a settled permanent resident of Australia (at ‘time of application’) and is the applicant’s niece based on copies of her mother’s birth certificate, her own birth certificate and the applicant’s birth certificate, each of which were provided to the department previously and none of which has raised concerns from the department as to their authenticity and therefore reliability. The Tribunal has proceeded accordingly, accepting the claimed relationship on the available evidence and mindful relevant documents may be subject (prior to the grant of any visa) to verification or integrity checks by the Department. It follows therefore, that the applicant is the ‘relative’ of an Australian relative for the purposes of cl 838.212.

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

19. 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.

20. Broadly speaking, 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).

    Does the applicant have a spouse or de facto partner?

21. The applicant has stated she has never been married or in a de facto relationship. The applicant has provided a statutory declaration to the department which states same. There is no evidence or claim before the Tribunal which casts doubt upon these claims.

22. For these reasons subparagraph (a) of the definition of ‘aged dependent relative’ is met both at the ‘time of application’ and the ‘time of decision’.

    Is the applicant dependent on the Australian relative?

23. 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).

24. For the purposes of this application, reference to a ‘substantial period’ in reg 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 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].

25. The applicant applied for the visa on 25 November 2016. As evidence of dependency the applicant has provided bank statements from Central Provident fund (Ordinary account) (Medisave account) and (Retirement account). The applicant provided multiple accounts statements from the central depository (pte) Limited for the period 30/9/2016 to 31/7/2017 which shows the applicant holds various shares with a number of organisations with a market value of approximately SGD $129897.66 to $151497.56. Bank statements from OCBC for the period from 1/2/2017 and 31/5/2017 show a range of six-digit balances. The applicant provided various bank statements showing interest earned in her own account and joint bank account wither sister Kah Choo Chan (the niece’s mother). Also provided are OCBC bank application for a cashier order dated 23/10/2015 for the amount of $87776.17 for a period of 6 months in another account, with both accounts registered in the sponsor’s name and after maturity they are deposited into a joint account between the sponsor and applicant). The applicant provided a breakdown of her yearly living expenses in Singapore dollars, as outlined in the evidence she provided the department, and reproduced in the delegate’s refusal ‘Decision record’ dated 23 July 2018. The applicant’s monthly expenses for food, clothing and shelter (including utilities) is estimated, based on her own data, at the value of SGD $6200 per annum, roughly SGD $516 per month.

26. The applicant has previously provided (to the Department) a letter from the Singapore High Commission which confirmed the applicant is not a state-paid pensioner.

27. Based on the evidence provided, the Tribunal has not been satisfied that the applicant is, and had been for a substantial period of time, wholly or substantially reliant on her niece (the sponsor) for her basic needs for food, clothing and shelter.

28. The Tribunal has come to the above finding because the financial evidence the applicant has provided shows the applicant has enough money to support (at least) half of her entire costs of her basic food, clothing and shelter (at the time of application), in addition to a large amount of savings as evidence by the balances of various accounts referred to above. It follows, the applicant ahs not satisfied the Tribunal that ‘at time of application’ the applicant has been wholly or substantially reliant upon her niece (her sponsor) to meet the cost of her needs as set out above. Accordingly, the applicant does not satisfy regulation 1.05A(1)(a)(i). As the applicant has failed to satisfy a requisite criterion for the grant of the visa, the Tribunal need not consider the other criteria (though notes that there is no claim or evidence that at the ‘time of application’ the applicant would meet the alternate criteria under r.1.05A(1)(b).

    FINDINGS

29. For the reasons outlined above, subparagraph (b) of the definition of ‘aged dependent relative’ is not met at the ‘time of application’.

    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.

30. 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

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

    Nicholas McGowan
    Member