Mala (Migration)

[2021] AATA 3751

Mala (Migration) [2021] AATA 3751 (27 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Basant Mala

CASE NUMBER:  1830720

HOME AFFAIRS REFERENCE(S):          CLF2017/44322

MEMBER:M. Edgoose

DATE:27 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 27 September 2021 at 10:20am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – dependent for a reasonable period – substantial reliance for 3 months at time of visa application and continuing since then – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations, rr 1.03, 1.05A(1), Schedule 2, cls 838.212, 838.221
Social Security Act 1991 (Cth)

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 3 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 19 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 Seleno Gupta, 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 Seleno Gupta is an Australian citizen and is the applicant’s niece.

   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 applicant has never married and does not have any children of her own. For these reasons subparagraph (a) of the definition of ‘aged dependent relative’ is met at the time of application and at the time of decision.

    Is the applicant dependent on the Australian relative?

12. 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).

13. 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].

14. According to the delegates decision the applicant arrived in Australia on 20 March 2017 and since that time has been living with the sponsor. The delegate noted that the sponsor had been paying for all of the applicant’s expenses in the 3 months prior to the lodgement of the Aged Dependent Relative application on 19 June 2017 which was not considered a reasonable period for financial dependency prior to the lodgement. The delegate was not satisfied the sponsor had been providing the applicant with financial support from 2014 to 2016 as there was no evidence submitted to support this claim.

15. The Tribunal accepts that since arriving in Australia on 20 March 2017 the applicant has been living with the sponsor. Based on the evidence submitted the Tribunal considers the applicant for a substantial period immediately prior to that time has been substantially reliant on the sponsor for financial support to meet her basic need for food, clothing and shelter. Therefore, the Tribunal is satisfied the applicant meets reg 1.05A(1)(a)(i). 

16. The Tribunal has also given careful consideration to the medical evidence submitted by the applicant. The Tribunal notes that the medical evidence provided to the Tribunal that the applicant has receive regular medical support and that the payments for these appointments have been paid for by the sponsor. The medical treatment has also included regular visits to a dentist. Based on the medical evidence submitted 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 and therefore meets the requirements of reg 1.05A(b).

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

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

18. 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.

19. The applicant at time of the application, 19 June 2017, was over 68 years of age and therefore was old enough to be granted an aged pension under the Social Security Act 1991 (Cth). At time of decision the applicant is 72 years of age. For these reasons subparagraph (c) of the definition of ‘aged dependent relative’ is met at the time of application and at the time of decision.

20. 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 at the time of decision for the purposes of cl 838.212 and cl 838.221.

21. 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

22. 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