Ngo (Migration)

[2021] AATA 3863

Ngo (Migration) [2021] AATA 3863 (22 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Ha Thu Thi Ngo

VISA APPLICANT:  Ms Kim Loan Huynh

CASE NUMBER:  1821878

HOME AFFAIRS REFERENCE(S):          2013027044 OSF2013/027044

MEMBER:M. Edgoose

DATE:22 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the 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 22 September 2021 at 1:37pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 114 (Aged Dependent Relative) – aged dependent relative of an Australian relative – wholly or substantially reliant for financial support – evidence of money transfers – greater reliance than on any other person – age requirement – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 114.211, 114.221; rr 1.03, 1.05
Social Security Act 1991

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 10 July 2018 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 29 May 2013. At that time, 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 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl 114.211.

3. The delegate refused to grant the visa on the basis that cl 114.211 was not met.

4. The review applicant was represented in relation to the review by her representative.

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 visa applicant is the aged dependent of Ms Ha Thu Thi Ngo, who the visa 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 Ha Thu Thi Ngo is an Australian citizen and is the visa applicant’s daughter.

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

8. 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 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 visa applicant is the ‘relative’ of an Australian relative for the purposes of cl 114.211.  

    Does the visa applicant have a spouse or de facto partner?

11. The visa applicant was married to Mr Van Kiem Ngo who passed away on 3 September 2005 according to the death certificate supplied to the Tribunal. For these reasons subparagraph (a) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.

    Is the visa 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 visa applicant claimed that she is dependent on the review applicant. At an interview conducted on 29 July 2014 the visa applicant claimed that the review applicant provides her with AUD200 every month or AUD300 every 2 months. The visa applicant claimed at a difference interview conducted on 14 August 2013 that the review applicant gives her AUD100 – 200 every month or every two months which equates to a maximum of AUD2,400 per year.

15. The visa applicant further stated during the interview on 29 July 2014 that she was receiving the following financial support and income:

    a.Income from a three bedroom rental property that you rented out for VND4 – 4.5 million per month;

    b.Financial support from one of the visa applicant’s children, Thi Hoang Phuong NGO, AUD200 – 300 at Vietnamese New Year and AUD100, two to three times per year;

    c.Financial support from one of the visa applicant’s children, Thi Anh Dao NGO, AUD200 at Vietnamese New Year, AUD100 at the time of the visa applicant’s husband’s death anniversary and AUD100, up to three times a year; and

    d.Another of the visa applicant’s children buys the visa applicant breakfast three to five times a week.

    The delegate found that the visa applicant receives a minimum of AUD400 from Thi Hoang Phuong NGO and a minimum of AUD600 Thi Anh Dao NGO, on a yearly basis.

16. The visa applicant further stated at interview in 2014 she had VND200 million (approximately AUD11,614.44) in bank savings and owned two properties. She also stated at interview that her daily food expenses was approximately VND100,000 per day; that she spent VND750,000 per year on clothes and that for shelter she lived in her own house. The Tribunal notes that following the interview on 29 July 2014 the delegate found at time of their decision, 10 July 2018, that the visa applicant did not meet the requirements of reg 1.05A as the delegate was not satisfied the visa applicant was wholly or substantially reliant on the review applicant for her financial support to meet basic needs of food, clothing and shelter.

17. On 14 September 2021 the Tribunal received evidence that demonstrates the visa applicant is dependent on their Australian relative within the meaning of reg 1.05A. The review applicant, the Australian relative, submitted to the Tribunal through her representative evidence of financial support for the visa applicant for her basic needs for food, clothing, medical, travel, and shelter which included receipts for electricity, gas, water and telephone bills. Included in this evidence was the amount of financial support the review applicant has sent to the review applicant for the years of 2019 AUD4,600, 2020 AUD7,000 and 2021 until the month of August AUD4,900 totalling AUD16,500. Evidence of the money transfers were submitted to the Tribunal.

18. Based on the financial support provided by the Australian relative for the visa applicant and the visa applicant’s limited income the Tribunal is satisfied at time of this decision the visa applicant has for a substantial period of time been, wholly or substantially reliant on the other person, the review applicant, for financial support to meet their basic needs for food, clothing and shelter.

19. The Tribunal is also satisfied that the visa applicant’s reliance on that person, the review applicant, is greater than any reliance on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter.  The Tribunal accepts that the visa applicant may receive some income from the rental property and her other children however the Tribunal is satisfied the reliance on the financial support from the review applicant is greater than that of her own income according to the evidence submitted.

20. Given that the visa applicant is over 78 years of age the Tribunal is satisfied she is wholly or substantially reliant on, the review applicant for financial support and is incapacitated for work.

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

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

22. To meet the definition of ‘aged dependent relative’ the visa 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. At time of this decision the visa applicant is 78 years of age and therefore is old enough to be granted an age pension under the Social Security Act 1991 (Cth). For these reasons subparagraph (c) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.

24. 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 the time of decision for the purposes of cl 114.211 and cl 114.221.

25. 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

26. The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the 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.

    M. Edgoose
    Member