Nikitenko (Migration) - [2017] AATA 251

Nikitenko (Migration) [2017] AATA 251 (16 February 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Dmitry Nikitenko
VISA APPLICANT:  Ms Liudmila Nikitenko
CASE NUMBER:  1606632
DIBP REFERENCE(S):  OSF2015/038598
MEMBER:Glynis Bartley
DATE:16 February 2017
PLACE OF DECISION:  Sydney
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 and cl.114.221 of Schedule 2 to the Regulations

Statement made on 16 February 2017 at 8:22am

CATCHWORDS
Migration – Other Family (Migrant) (Class BO) visa – Subclass 114 (Aged Dependent Relative) – Wholly and substantially reliant – Russian pension insufficient to cover costs of living – Reliance on sponsor greater than on any other means of support – Eligible for Australian aged pension
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2,
r 1.03, r 1.05A(1), cl 114.211, cl 114.221

Social Security Act 1991
CASES
Huang v MIMIA [2007] FMCA 720
Fusi v MIAC
[2012] FMCA 1037

Huynh v MIMIA (2006) 152 FCR 576

STATEMENT OF DECISION AND REASONS
ISSUE

The issue in the present case is whether the visa applicant, Ms Liudmila Nikitenko, is the ‘aged dependent relative’ of her son, Mr Dmitry Nikitenko.
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant Ms Nikitenko an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).
Ms Nikitenko is a 69-year-old Russian national. She is retired and lives in Moscow. Ms Nikitenko is divorced and has two adult children. Her son, Mr Nikitenko, is a 46-year-old Australian citizen by grant. He lives in Australia with his wife and two children. Ms Nikitenko’s daughter is separated and lives with her son in Moscow.
Ms Nikitenko applied for the visa on 3 February 2015. 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, Ms Nikitenko is seeking to satisfy the criteria for the grant of a Subclass 114 visa which requires Ms Nikitenko 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 and cl.114.221.
The delegate refused to grant the visa on 2 March 2016 on the basis that cl.114.211 and cl.114.221 were not met. The delegate was not satisfied that Ms Nikitenko was, and had been for a substantial period of time, wholly or substantially reliant on her son for her basic needs for food, clothing and shelter. The delegate stated that Ms Nikitenko was receiving a pension of 17,000 RUB per month, which was around 30% higher than the average pension in Russia. The delegate noted that Ms Nikitenko owns her own apartment and concluded that her pension is sufficient to cover her basic needs.
On 10 May 2016 Mr Nikitenko lodged an application for review of the decision with this Tribunal.
Mr Nikitenko appeared before the Tribunal on 1 February 2017 to give evidence and present arguments. The Tribunal also received oral evidence in person from Mr Nikitenko’s wife (Mrs Diana Nikitenko) and by telephone from Ms Nikitenko. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian language.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa application was made on the basis that Ms Nikitenko is the aged dependent relative of Mr Nikitenko. Relative is 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).
In this case, the Tribunal is satisfied that Mr Nikitenko is an Australian citizen, based on his passport provided at the hearing, and is Ms Nikitenko’s son, as evidenced by a certified copy of his birth certificate provided to the Department.
Is Ms Nikitenko an aged dependent relative of an Australian relative?
To be granted a Subclass 114 visa Ms Nikitenko must be an ‘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.
On the basis of the evidence before it, the Tribunal is satisfied that Mr Nikitenko is the son of Ms Nikitenko. The Tribunal is further satisfied that Mr Nikitenko is an Australian citizen. In this case, Ms Nikitenko is the ‘relative’ of an Australian relative for the purposes of cl.114.211.
Does Ms Nikitenko have a spouse or de facto partner?
Based on the material on file and the oral evidence at the hearing, the Tribunal is satisfied that Ms Nikitenko is divorced, did not have a spouse or partner at the time of application and has not had a spouse or de facto partner since then. 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 Ms Nikitenko dependent on the Australian relative?
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).
The term ‘substantially reliant’ involves a concept of predominance and requires the Tribunal to ask whether Ms Nikitenko was predominantly or ‘primarily, essentially or in the main’ dependent on the other person. Huang v MIMIA [2007] FMCA 720 at [26]. In Fusi v MIAC [2012] FMCA 1037 at [60], the Court found that it was open for the Tribunal to explore how the visa applicant received financial support and to consider any other sources of income on which she was dependent, in this case, funds from other family members, when assessing whether she was ‘wholly or substantially reliant’. Although the Court’s consideration relates to the definition of ‘dependent’ as it stood prior to November 1999, the reasoning would appear to be equally applicable to the current definition in so far as it considers the terms ‘wholly or substantially reliant’.
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].
Mr Nikitenko and Ms Nikitenko gave consistent evidence that Ms Nikitenko receives a Russian pension of 17,033RUB ($374) per month. The pension is made up of three parts; a Federal government component, a Moscow supplement in recognition of the high cost of living in Moscow and an additional amount (Veteran) in recognition of Ms Nikitenko’s former employment as a surgeon.
Ms Nikitenko resides in a four-bedroom apartment in the centre of Moscow and has owned one room in the apartment since the building was privatised by the government. Mr Nikitenko owns two rooms in the same apartment, which he leases, and the fourth room is owned by an unrelated third party. The property has a communal kitchen and bathroom. Ms Nikitenko pays monthly property fees of 4,000RUB ($87) for building maintenance, utility expenses and a telephone connection.
The parties gave consistent oral evidence that it is very expensive to live in the centre of Moscow. There is a supermarket near Ms Nikitenko’s apartment and she generally shops there because it is too difficult for her to travel to more economical supermarkets due to her age and the extreme climate. Both Mr Nikitenko and Ms Nikitenko said that it costs Ms Nikitenko around 15,000RUB ($329) per month for food, although it varies depending on the season and what she chooses to purchase. Mr Nikitenko submitted a list of grocery prices that he obtained during his recent trip to Russia at the hearing. Prior to the hearing he submitted an extract from “The Consumer Goods Basket in Moscow” with the calculation of the average cost per year and month for a retired person in April 2016. It shows the cost of food for a retired person as 16,462.50RUB ($361) per month.
At the hearing Ms Nikitenko estimated that she spends around 10,000RUB ($219) per month on clothes. Both Mr Nikitenko and Ms Nikitenko gave evidence that Moscow is a harsh environment due to the extreme weather and also because the local authorities spray de-icing chemicals on the ground to clear the snow. The chemicals damage shoes and clothing and frequent replacement is necessary. Prior to the hearing, Mr Nikitenko submitted a list of the clothing that Ms Nikitenko had purchased for the 12 month period from May 2015 to April 2016. It shows an annual figure of 148,940RUB ($3,274.03), which equates to 12,412RUB ($272.87) per month.
At the hearing Mr Nikitenko, Mrs Nikitenko and Ms Nikitenko emphasised that the cost of living in Moscow is very high. Mr Nikitenko stated that most pensioners cannot live on the government pension without supplementary income from renting out rooms or by growing their own vegetables. Many are forced to rely on family members or scavenge in garbage bins. Mr Nikitenko stated that the life expectancy is significantly less than in Australia. Ms Nikitenko has limited contact with her daughter and two sisters. Mr Nikitenko said that his mother is alone and vulnerable and he feels responsible for her welfare. She also has medical, transport and other costs of living to meet. Mr Nikitenko gave oral evidence that his mother’s building was renovated in 2013 by the government as it was on the verge of collapse. She was provided with alternative accommodation, but the monthly fees were more than double those of her own apartment. Ms Nikitenko quit the alternative accommodation and went to live in an apartment that Mr Nikitenko owns on the outskirts of Moscow. Ms Nikitenko returned to her apartment in 2014 after the renovation was completed, however she continued to be billed for the alternative accommodation despite not living there. Mr Nikitenko said he disputed the bill of 200,000RUB ($4,395) on his mother’s behalf when he was in Russia last month, but the matter has not yet been resolved.
Mr Nikitenko gave oral evidence that his mother’s costs for food, clothing and accommodation amount to 35,000RUB per month, but this is not supported by the documents he submitted prior to the hearing, which the Tribunal considers are more reliable. The Tribunal accepts the figures provided in Mr Nikitenko’s submissions prior to the hearing in relation to the monthly costs of Ms Nikitenko’s food (16,462.50RUB), clothing (12,412RUB) and accommodation (4,000RUB). In total these expenses equate to 32,874RUB ($722) per month. Although Ms Nikitenko has a bill related to alternative accommodation provided to her during the period her building was being renovated, Mr Nikitenko is attempting have that debt removed as his mother was not living in the alternative accommodation at the relevant time. That debt has not been included in the Tribunal’s calculations as it does not relate to Ms Nikitenko’s actual accommodation costs.
As noted above, Ms Nikitenko receives a Russian pension of 17,033RUB per month and also receives 30,000RUB per month from Mr Nikitenko, being the rent from two rooms in her apartment. The Tribunal accepts on the basis of the documents provided and the consistent oral evidence that Mr Nikitenko owns those rooms and Ms Nikitenko retains the rental income to meet her living expenses. Ms Nikitenko’s regular monthly income is therefore 47,033RUB. The Tribunal accepts that Mr Nikitenko feels obliged to meet her mother’s needs due to their close family relationship. It is satisfied that Ms Nikitenko pools her income from both sources (her pension and the rent from Mr Nikitenko’s rooms) and uses it as required to meet her living expenses. The Tribunal is satisfied that the costs of Ms Nikitenko’s basic needs of food, clothing and accommodation amount to 32,874RUB per month and that these costs are substantially met by Mr Nikitenko.
The Tribunal finds that Ms Nikitenko’s reliance on Mr Nikitenko is greater than any other means of support, including her income from her Russian pension. Although Ms Nikitenko owns her own accommodation, she pays monthly fees to live in her shared apartment. The Tribunal is satisfied that Ms Nikitenko has been predominantly reliant upon Mr Nikitenko for many years, most likely since her retirement in 2003, to meet her basic needs.
Based on the material before it, the Tribunal therefore finds that Ms Nikitenko was at the time of application and at the time of decision, and for a substantial period immediately prior to those dates, substantially reliant on Mr Nikitenko for financial support to meet her basic needs for food, clothing and shelter. It further finds that Ms Nikitenko’s reliance on Mr Nikitenko was greater than any reliance by Ms Nikitenko on any other person, or source of support, for financial support to meet Ms Nikitenko’s basic needs for food, clothing and shelter. The Tribunal is satisfied that Ms Nikitenko meets the definition of dependent, as defined in Regulation 1.05A of the Migration Regulations 1994. Subparagraph (b) of the definition of ‘aged dependent relative’ found in Regulation 1.03 of the Regulations is therefore met at the time of application and the time of decision.
Is Ms Nikitenko old enough to be granted an age pension?
To meet the definition of ‘aged dependent relative’ Ms Nikitenko must be old enough to be granted an aged pension under the Social Security Act 1991. Different age qualifications apply for men and women and depend upon the date of Ms Nikitenko’s birth.
Ms Nikitenko’s passport confirms that she was born on 3 January 1948 and is currently 69 years of age. She is therefore old enough to be granted an age pension under the Social Security Act 1991. For these reasons subparagraph (c) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.
Conclusions
For the reasons set out above, the Tribunal is satisfied that Ms Nikitenko 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.
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
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 and cl.114.221 of Schedule 2 to the Regulations
Glynis Bartley
Member