Luo (Migration)

[2020] AATA 2854

Luo (Migration) [2020] AATA 2854 (9 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Yong Luo

VISA APPLICANT:  Mr Taihou Luo

CASE NUMBER:  1912998

DIBP REFERENCE(S):  OSF2016/073469

MEMBER:Kira Raif

DATE:9 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 09 July 2020 at 10:56am

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 114 (Aged Dependant Relative) – dependant on Australian relative for reasonable period – visa applicant previously dependant on review applicant’s brother, who has migrated to Australia – brother returns to home country twice a year to care for visa applicant – visa applicant living in own property and receiving pension – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), rr 1.03, 1.05A(1), 1.15, Schedule 2, cll 114.211, 114.221

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 Immigration on 16 May 2019 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of China, born in July 1929. He applied for the visa on 27 October 2014. The delegate refused to grant the visa on the basis that cl.114.211 was not met because the delegate was not satisfied the applicant was an aged dependent relative of an Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. On 22 June 2020 the Tribunal wrote to the review applicant and invited her to appear before the Tribunal on 9 July 2020 to give evidence and present arguments. On 1 July the review applicant requested, through her representative, that the hearing be postponed to allow for the preparation of further evidence. The Tribunal has considered the request but decided not to postpone the hearing. Firstly, the applicant was given the prescribed period of notice of the hearing and the fact that there is a prescribed period may suggest that the legislation considers such period to be sufficient to prepare the necessary evidence. Secondly, the application was lodged with the Tribunal in May 2019, more than 12 months prior to the hearing and the applicant has not explained why that was insufficient time to gather the evidence, given that the relevant issues have been clearly identified in the primary decision and the applicant is ably represented by a registered migration agent. Thirdly, and most importantly, the applicant failed to specify what evidence is being prepared and why such evidence cannot be prepared prior to the scheduled hearing. The request simply refers to the gathering of evidence. There is no explanation why such evidence cannot be made available prior to the scheduled hearing but would be available within 3 weeks as requested by the applicant. The applicant has not identified the steps being undertaken to obtain the evidence, nor explained the delay, if any. The Tribunal is also mindful that nothing prevents the applicant from seeking more time to present the evidence following the hearing, if necessary. (The applicant has not done so.) In such circumstances, the Tribunal decided not to postpone the hearing and informed the applicant accordingly.

4. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. While the applicant requested the hearing postponement, as noted above, the review applicant had no objection to participating in a telephone hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.  

5. The review applicant appeared before the Tribunal by teleconference  on 9 July 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The review applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

6. At the time the application was made, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer). In the present case, the visa applicant is seeking to satisfy the criteria for the grant of a Subclass 114 visa which requires the primary visa applicant to be the aged dependent relative of an Australian citizen, permanent resident or an eligible New Zealand citizen. The criteria for a Subclass 114 visa are set out in Part 114 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

7. To be granted a Subclass 114 visa the visa 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.114.211 and cl.114.221. ‘Aged dependent relative’ is defined in r.1.03 of the Regulations.

8. 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.

9. 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).

10. 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].

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

11. The applicant claims to be a widow. He meets subparagraph (a) of the definition of ‘aged dependent relative’. The applicant was born in 1929 and the Tribunal is satisfied he is old enough to be granted an age pension under the Social Security Act 1991. The applicant meets subparagraph (c) of the definition of ‘aged dependent relative’. The issue is whether the applicant has been dependent on the Australian relative for a reasonable period, and remains so dependent. The visa applicant claims to be dependent on the sponsor, who is his daughter.

12. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant stated on the application form that he had been dependent on the son for close to 14 years. The visa applicant provided a statement in which he stated that he had been living with his son’s family until the son’s migration to Australia in 2017 and shared the cost of living, approximately RMB 5,000 – 8000 a month. The visa applicant stated that he owned the property in which he lived and that he received a pension of RMB 10,000 a month, which was sufficient to meet his cost of living. The visa applicant stated that he did not receive any financial help from his daughter, the sponsor. The sponsor also stated on the application that she cannot provide historical financial detail because following the death of her mother, her father lived with his son (the sponsor’s brother) who cared for him and since the brother was now migrating to Australia, she wished to take on that responsibility. As a result, the delegate was not satisfied the applicant was dependent the sponsor.

13. The review applicant provided written evidence to the Tribunal on 7 July 2020. The review applicant outlined the family composition and the application background. With respect to dependency, the review applicant states that she returns to China once a year to care for her father and to be with him and due to work commitments she is not able to return more frequently. She states that her brother Mr Luo also returns to China twice a year to care for their father but due to his own health condition he is not able to do it more frequently. The review applicant states that the visa applicant receives a pension of RMB10,000 (AUD2400) a month but he is emotionally dependent on his daughter (the sponsor) and has no ‘near relatives’ as he lives by himself in China. The review applicant states that her father does not cope well with the climate in China (the representative does not explain the relevance of that  observation to the statutory criteria) and states that she feels obliged to meet her father’s needs and to be with him in his final years. The review applicant provided with her submission a number of documents, including evidence of family relationships, evidence of her and her brother’s Australian resident status, personal identity documents and other materials.

14. In oral evidence, the review applicant told the Tribunal that her father has been living on his own in China and due to his age, they have hired a carer to look after him. There are no relatives to look after him and he must rely on friends. The Tribunal acknowledges the review applicant’s evidence that her father needs family support but is mindful that  the definition of dependence is concerned with financial reliance only and not physical or emotional support.

15. The review applicant told the Tribunal that the property where the visa applicant lives was purchased by her father and used to be owned by her father but after the application was made, the ownership was transferred to her brother as a gift in response to her brother’s care. The review applicant said that her brother migrated to Australia in 2017 and until that time he was looking after their father in terms of personal needs. The review applicant told the Tribunal that her father has been receiving a pension which had been ‘entrusted’ to her brother. Her brother received the pension and with his own funds, managed the household budget. The review applicant confirmed that until her brother’s migration to Australia, it was her brother who provided financial support to the father.

16. The review applicant said that her father’s pension is RMB10,000 a month (or about AUD2000). The review applicant said her father’s basic needs of food, clothing and shelter would amount to just under RMB 10,000 and he would save a little from the pension. The review applicant said that the financial support was provided by her brother (who also managed her father’s pension) but there was no support from her. This was the arrangement until her brother’s migration to Australia. Since the brother’s migration, the father has been relying on his pension. In terms of her own financial support for her father, the review applicant said she would buy clothes and other supplies for her father. She would bring him bags of clothes whenever she or relatives travelled to China. The review applicant said she tried to give money to her father but he did not want to take her funds and returned the money.

17. The review applicant told the Tribunal that when her brother was in China, her father was relying on her brother but since the brother’s migration, she felt she had to take over that responsibility.

18. The Tribunal has found the review applicant to be a truthful witness and accepts her evidence. The review applicant’s evidence indicates that at the time the application was made, the visa applicant was residing at a property which he owned and that he was receiving a pension which was used to cover his basic needs. The funds were managed by the review applicant’s brother and the review applicant’s evidence is that it is the father’s pension, in addition to the brother’s funds, that were used to meet his basic needs. The review applicant also said that it is her brother who provided financial support to their father. While the Tribunal accepts that the review applicant had sent clothes, food supplements and some other essentials to her father, such support appears to be significantly smaller than the support the visa applicant had received from his son.

19. The Tribunal finds that  at the time of application, the visa applicant was not reliant on the review applicant for shelter and the definition of dependence requires reliance for all three elements of food, shelter and clothing. The reliance for shelter was entirely absent. Further, the Tribunal is not satisfied that the visa applicant’s reliance on his daughter for clothing and food was greater than the visa applicant’s reliance on his son and the pension. The review applicant’s evidence to the Tribunal is that it is her brother who was providing the necessary financial support and that her father’s pension was sufficient to meet his needs.

20. The Tribunal is not satisfied that at the time the application was made, and for a substantial period immediately before that  time, the visa applicant was wholly or substantially reliant on the review applicant for financial support to meet his basic needs for food, clothing and shelter. The Tribunal is not satisfied the visa applicant’s reliance on his daughter was greater than his reliance on another person (his son) or other source of support (the pension). The Tribunal is not satisfied the visa applicant meets paragraph (1)(a) of the definition of ‘dependence’.

21. There is no documentary evidence concerning the visa applicant’s incapacity but given the visa applicant’s age, the Tribunal is prepared to accept that such incapacity exists. However, the Tribunal is not satisfied the visa applicant was wholly or substantially reliant on the sponsor for financial support. Again, the review applicant’s evidence is that it is her brother who provided financial support to their father, and that the father was relying on his pension. The review applicant concedes that at the time of the application, her father was not reliant on her financially. On the evidence before it, the Tribunal is not satisfied that  at the time of the application, the visa applicant was wholly or substantially reliant on the review applicant for financial support because of the visa applicant’s incapacity for work. The Tribunal is not satisfied the visa applicant meets paragraph (1)(b) of the definition of ‘dependence’.

22. The Tribunal is not satisfied that  at the time of the application, the visa applicant was a dependent relative of an Australian relative. The Tribunal is not satisfied he meets cl. 114.211.

23. The Tribunal acknowledges the review applicant’s evidence that she wants her father to live in Australia with his family and that he does not cope well with the weather in China. The review applicant states her father has no family in China and nobody to care for him. However, the Tribunal has no discretion to recommend the grant of the visa on compassionate grounds.

24. The Tribunal has considered whether the applicant is a remaining relative of an Australian relative. The applicant indicated on the application form that he had no relatives outside of Australia. However, the applicant is a parent of the sponsor. The definition of remaining relative in r. 1.15 provides that the sponsor must be a parent, sibling or a step-sibling of the applicant. In the present case, the applicant is a parent of the sponsor and, as such, he cannot meet the definition of ‘remaining relative’. He does not qualify for the grant of the remaining relative visa. The applicant does not claim to be a carer of another person and has not provided the carer certificate. The Tribunal finds that  he did not make a valid application for a Carer visa and in any case, does not meet the definition of a carer.

    Conclusion

25. For the reasons above, the visa applicant does not meet the criteria for a Subclass 114 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

    DECISION

26. The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

    Kira Raif
    Senior Member