Mohsseni (Migration)

[2017] AATA 2941

Mohsseni (Migration) [2017] AATA 2941 (27 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Faeza Mohsseni

VISA APPLICANTS:  Ms Mazawar Nazari
Ms Adila Mohsini

CASE NUMBER:  1600389

DIBP REFERENCE(S):  OSF2013/096894

MEMBER:Kira Raif

DATE:27 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 114 (Aged Dependent Relative) visa:

·cl.114.211 of Schedule 2 to the Regulations; and

·cl. 114.221 of Schedule 2 to the Regulations

Statement made on 27 November 2017 at 2:07pm

CATCHWORDS

Migration – Other Family (Migrant) (Class BO) visa – Subclass 114 (Aged Dependent Relative) – Financially dependent on the review applicant – Other children reside in Afghanistan

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.03 Schedule 2 cls 114.211, 114.221

Social Security Act 1991

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 4 November 2015 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (‘the visa applicant’) is a national of Afghanistan, born in March 1941. The visa applicant applied for the visa on 20 November 2013. The delegate refused to grant the visa on the basis that cl.114.211 was not met because the delegate was not satisfied the visa applicant was an aged dependent relative of the sponsor, who is her daughter. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 14 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi 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 matter should be remitted for reconsideration.

   Relevant law

4. 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 applicants are 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). Relevantly to this matter, the primary criteria to be met include cl.114.211.The visa application was made on the basis that the visa applicant is the aged dependent of her daughter.

5. 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. 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.

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

6. There is no evidence that the visa applicant is incapacitated for work. The review applicant’s oral evidence to the Tribunal is that her mother is healthy. She may have headaches when she is stressed but she is otherwise healthy. The Tribunal finds that the visa applicant is not incapacitated for the purpose of subparagraph (1)(b) of the definition of ‘dependent’.

7. The visa applicant claims to be an aged dependent relative of her daughter and to be financially dependent on her daughter. The visa applicant claims in her application that the sponsor has been providing her with financial support since the death of her husband in 1996 and since the sponsor arrived in Australia in 2010. Evidence of financial transfers has been submitted with the application and additional evidence of transfers is before the Tribunal. The delegate noted that the transfers were made through an ‘unofficial network’ and only limited weight can be given to such evidence. The Tribunal is of the view that if the financial transfers had been made, it is irrelevant how the money had been sent and there is no reason to reject the evidence of transfers only on the basis that these were made through an unofficial network.

8. The review applicant in her written submission to the Tribunal outlines several concerns with the primary decision record, including claimed denial of procedural fairness and various inaccuracies. The representative argues that the decision should be set aside on that basis. The Tribunal’s review, however, is a review de novo, so any deficiencies in the primary decision, even if these were established, will not lead to the decision being set aside on that basis.

9. In oral evidence to the Tribunal the review applicant said her mother lives in Iran with another daughter, the secondary visa applicant. They rent the place where they live. They have been living in the current accommodation for about two to three years and they were renting different accommodation prior to that. The rent is about 500,000 a months and includes bills.

10. The review applicant told the Tribunal she started providing financial support to her mother around 2012. She has been sending between $2000 and up to $5000 if there is a need for something specific. The review applicant said she has been supporting her mother financially about twenty years ago, including the time when they were living in Iran, and continued to provide that support after she came to Australia in 2010. The review applicant said she left money to her mother in 2010 when she left Iran and has been sending money from Australia since 2012.

11. The review applicant said she has five sisters and three step-brothers. They all live in Afghanistan since about two to three years ago because they did have the identity papers in Iran. The review applicant said that these siblings have not provided financial support to their mother. Her sisters are married and their husbands are not that helpful. The brothers do not provide financial support because the visa applicant is not their biological mother. As the oldest daughter, she has taken the responsibility to provide financial support to her mother.

12. The Tribunal has found the review applicant to be a truthful witness and the Tribunal accepts her evidence. The Tribunal accepts that as the oldest child, the review applicant feels the responsibility to provide financial support to her mother and has been doing that for some time. The delegate refers to several transfers between the review applicant’s spouse and the visa applicant and while the Tribunal acknowledges that these show different names, the Tribunal accepts the review applicant’s explanation that the names on these transfers relate to the review applicant’s husband and son. The Tribunal also acknowledges that there is no documentary evidence to show that the money had been sent to the visa applicant. The review applicant’s explanation is that her mother is illiterate and does not understand the system and that she is unable to send the money directly to Iran, so the money is sent through various organisations and through a friend who then gives cash to her mother.

13. The review applicant subsequently provided to the Tribunal updated evidence of transfers dating from 2012 to present and documentary evidence from another person who has been receiving money from the review applicant has been withdrawing these funds to transfer to the visa applicant. On the basis of this evidence, the Tribunal accepts that the visa applicant has been providing financial support to her mother since at least 2012. There is no evidence to indicate that the visa applicant is receiving financial support from any other source. The Tribunal accepts the review applicant’s evidence that the money she sends is used for the visa applicant’s basic needs, including accommodation, food and clothes.

14. The Tribunal is satisfied that the visa applicant is dependent on her daughter, the sponsor and has been so dependent at the time the application was made. The Tribunal accepts that the visa applicant’s reliance on her daughter for financial support for basic needs is greater than her reliance on any other source. The Tribunal finds that the visa applicant, who is 76 years of age, is old enough to be granted an aged pension under the Social Security Act 1991and she is the relative of the sponsor. She is a widow and is not presently married or in de facto relationship. The Tribunal finds that the visa applicant is an aged dependent relative of the sponsor and meets cl. 114.211 and cl. 114.221.

    Conclusion

15. 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 114 visa.

    DECISION

16. The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 114 (Aged Dependent Relative) visa:

    ·cl.114.211 of Schedule 2 to the Regulations; and

    ·cl. 114.221 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member