Ng (Migration)

[2018] AATA 1535

Ng (Migration) [2018] AATA 1535 (12 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Linda Ng

CASE NUMBER:  1605213

DIBP REFERENCE(S):  CLF2015/65658

MEMBER:Kira Raif

DATE:12 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 12 April 2018 at 12:19pm

CATCHWORDS

Migration – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – Applicant is not an aged dependent relative of the sponsor – Not meeting the relevant definition of dependence

LEGISLATION

Migration Act 1958, s. 65

Migration Regulations 1994, Schedule 2, r.1.03, r1.05A, cl 838.212, 838.221, 838.111

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 30 March 2016 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Indonesia born in September 1950. She applied for the visa on 22 October 2015 and she was sponsored in that application by her niece. The delegate refused to grant the visa on the basis that cl.838.212 was not met because the delegate was not satisfied the applicant was an aged dependent relative of an Australian relative. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 12 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s niece and nephew. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, 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.

5. The criteria for a Subclass 838 visa are set out in Part 838 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The visa application was made on the basis that the applicant is the aged dependent relative of an Australian relative. Relative is also defined in r.1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or niece or nephew (or their step equivalents).

6. 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 r.1.03 of the Regulations.

7. 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 applicant an aged dependent relative of an Australian relative?

8. The applicant provided to the Tribunal a copy of the decision record.

9. The applicant provided with the application a single status certificate. She meets subparagraph (a) of the definition of ‘aged dependent relative’. The applicant was born in 1950 and the Tribunal is satisfied she 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.

10. There is no evidence to indicate that the applicant is incapacitated for work due to the total or partial loss of her bodily or mental functions. She told the Tribunal that she was healthy and does not have any health issues. The Tribunal is not satisfied the applicant meets paragraph (1)(b) of the definition of ‘dependence’.

11. The applicant is sponsored by her niece. She stated on the application form, with respect to her dependence, that she was dependent on three people, Dwi Agustina Shanty (6 years), David Shanty (9 years) and Mimy Mimy (9 years). The applicant provided a number of documents with her application including evidence of bank transfers by the sponsor, some of which did not indicate direct transfers between the sponsor and the applicant, and evidence of others contributing to various expenses including those associated with shelter.

12. The applicant told the Tribunal she last arrived in Australia in September 2015 and since that time she has been living with her nephew David and niece Dwi and the house belongs to David or his wife. The sponsor told the Tribunal that initially the house was purchased jointly by her and her sister in law but since then she was given the money for the purchase and her name has been removed, so she is no longer part owner of the house. The applicant said she previously visited Australia on many occasions and stayed in the same house.

13. The applicant’s written and oral evidence to the Tribunal is that she raised her niece and nephew from young age and they take care of her. She said that her nephew lets her stay in his house and pays for her airfares while her niece provides her with all other expenses including food and clothing. She said that the nephew and his wife only contribute to travel expenses. The applicant said that when she was in Indonesia she was living with her siblings in their house and did not need to pay rent. The applicant’s niece and nephew provided the same evidence to the Tribunal.

14. The Tribunal found the applicant to be a truthful witness and the Tribunal accepts her evidence. The Tribunal also accepts the evidence of the applicant’s niece and nephew. The Tribunal accepts that the sponsor has been providing financial support to the applicant and that such support has been used to cover her daily expenses, including food and clothing and other expenses. The Tribunal accepts that the money form the applicant’s nephew and his partner are used predominantly for her travel expenses.

15. The Tribunal is not satisfied, however, that the applicant is reliant on her niece for shelter. The parties’ evidence is that the house where she lives in Australia was owned by the sponsor and the nephew’s partner but is now owned by the nephew’s partner. While the Tribunal accepts that the sponsor contributes to the living expenses in the household and while that may indicate some degree of reliance by the applicant on the sponsor for shelter, such reliance is not greater than the applicant’s reliance on her nephew or the nephew’s partner for shelter. Further, the parties’ evidence to the Tribunal is that when she is in Indonesia, she lives in her sister’s house. Again, the Tribunal is of the view that before the applicant travelled to Australia, she was not reliant on the sponsor for financial support for shelter.

16. The Tribunal is of the view that the requirements of r. 1.05A relate to food and shelter and clothing and the reliance on all three elements is necessary to meet the requirement of that provision. That is, if the applicant is reliant on the sponsor for food and clothing but is not reliant on the sponsor for shelter, she cannot meet the relevant definition of dependence. In this case, the Tribunal is not satisfied the applicant’s reliance on the sponsor for shelter is greater than her reliance on any other source (such as other relatives). She was not so reliant for a reasonable period or a substantial period before the application was made (because in Indonesia she was reliant on her sister for shelter) and she is not so reliant at present (because her present reliance on her nephew or his partner is greater than her reliance on the sponsor). The Tribunal is not satisfied the applicant has been dependent on the sponsor at the time of the application or that she is so dependent now. She is not an aged dependent relative of the sponsor and does not meet cl. 838.212 and cl. 838.221.

17. The applicant told the Tribunal that she has a sibling living in Indonesia. The Tribunal finds that the applicant has near relatives who do not reside in Australia and the Tribunal is not satisfied the applicant is a Remaining Relative of an Australian relative. She does not claim to be a carer of another person and has not presented the Carer certificate. The Tribunal is not satisfied the applicant meets the requirements for the Carer visa.

18. The parties’ evidence is that the applicant brought up her niece and nephew since their parents died and there is a close relationship between them. The Tribunal accepts that evidence but having found that the applicant does not meet one of the criteria for the grant of the visa, the Tribunal must affirm the decision under review.

    Conclusion

19. 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

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

    Kira Raif
    Senior Member