Li (Migration)

[2021] AATA 3806

Li (Migration) [2021] AATA 3806 (28 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Fenghua Li

CASE NUMBER:  1832687

HOME AFFAIRS REFERENCE(S):          CLF2017/46823

MEMBER:M. Edgoose

DATE:28 September 2021

PLACE OF DECISION:  Melbourne

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; and

·cl 838.221 of Schedule 2 to the Regulations.

Statement made on 28 September 2021 at 12:37pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – dependency – evidence and submissions about sponsor’s financial support of applicant – residing with sponsor for 4 years – physical and mental health – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A(1), Schedule 2, cls 838.212, 838.221

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 Home Affairs on 31 October 2018 to refuse 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 applied for the visa on 30 June 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 (Cth) (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.

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

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The visa application was made on the basis that the applicant is the aged dependent relative of Ms Ming Li, who the applicant claims is their relative. Relative is also defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or niece or nephew (or their step equivalents).

7. In this case Ms Ming Li is a permanent resident and is the applicant’s daughter.

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

8. 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.

9. 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).

10. In this case, the applicant is the ‘relative’ of an Australian relative for the purposes of cl 838.212.

    Does the applicant have a spouse or de facto partner?

11. The Tribunal is satisfied the applicant has been married according to the delegate’s decision and submissions to the Tribunal. On 23 May 2018 the Department wrote to the applicant requesting evidence of the death certificate of the applicant’s spouse. At time of the delegate reaching its decision no evidence of the applicant’s claim of being a widow had been submitted.

12. On 15 March 2018, the applicant provided the Tribunal with a certified translated Notarial Death Certificate of Guongliang Li, the applicant’s late spouse. The certificate states that Mr Li was born on December 3, 1936 and died of disease on September 11, 2016. The certificate was notarised by the Zhuji Municipal Notary Public Office in Zhejiang Province on June 8, 2018.

13. Given the evidence, the Tribunal is satisfied that the applicant is widowed, and was widowed at the time that the visa application was made. For these reasons subparagraph (a) of the definition of ‘aged dependent relative’ is met at the time of application.

    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. 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].

16. On 15 March 2018 the applicant made submissions to the Tribunal in relation to the above definition as provided for in reg. 1.05A of the Regulations. The applicant submitted that she has been dependent on her daughter since prior to the death of her spouse. This dependence includes financial support from her daughter, including the provision of accommodation, payment of utility expenses, medical expenses and expenses related to other basic needs.

17. The submissions indicate that the applicant is the recipient of a pension from China in the amount of $900 AUD per month. The submissions further indicate that without the support of her daughter, the applicant would be solely reliant on this pension to meet all of her basic needs. The submissions indicate that the sponsor has financially supported the applicant in the amount of RMB10,000-15,000 each year ($2,000-$3,000AUD), provided in cash. A statutory declaration was also provided to the Tribunal sworn by the sponsor outlining the financial support provided to the review applicant.

18. The Tribunal acknowledges that since arriving in Australia on 20 June 2017 the applicant has been residing with the sponsor. Based on the evidence submitted to the Tribunal the applicant has been wholly or substantially reliant on the sponsor for financial support to meet her basic needs for food, clothing and shelter since her arrival in Australia and therefore the Tribunal is satisfied the applicant meets reg 1.05A(1)(a)(i).

19. Based on the evidence submitted the Tribunal is satisfied the applicant has demonstrated that her reliance on the sponsor is greater than any reliance on any other person, or source of support for financial support to meet the applicant’s basic needs for food, clothing and shelter. Therefore, the Tribunal is satisfied the applicant meets reg 1.05A(1)(a)(ii).

20. The Tribunal also received medical evidence on 28 November 2020 that the applicant has chronic and acute arthritis and other medical ailments including anxiety and depression. Given this medical letter dated 26 June 2021 the Tribunal is satisfied the applicant is wholly or substantially reliant on the sponsor for financial support because they are incapacitated for work due to the total or partial loss of their bodily or mental functions. Based on the medical evidence provided and the applicant’s age the Tribunal is satisfied the applicant meets reg 1.05A(b).

21. For these reasons subparagraph (b) of the definition of ‘aged dependent relative’ is met at the time of application.

    Is the applicant old enough to be granted an age pension?

22. 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 (Cth). Different age qualifications apply for men and women and depend upon the date of the applicant’s birth.

23. The delegate stated in the primary decision that ‘the applicant has provided evidence that she was aged 76 at time of application and therefore old enough to be granted an age pension under the Social Security Act 1991.’

24. Given the above, the Tribunal is satisfied that subparagraph (c) of the definition of ‘aged dependent relative’ is met at the time of application.

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 for the purposes of cl 838.212 and cl 838.221.

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; and

    · cl 838.221 of Schedule 2 to the Regulations.

    M. Edgoose
    Member