Phan (Migration)

[2020] AATA 5330

Phan (Migration) [2020] AATA 5330 (12 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Van Hoa Phan

VISA APPLICANT:  Mrs Thi Xa Nguyen

CASE NUMBER:  1927736

DIBP REFERENCE(S):  OSF2010/069525

MEMBER:Kira Raif

DATE:12 October 2020

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 of Schedule 2 to the Regulations; and

·cl. 114.221 of Schedule 2 to the Regulations.

Statement made on 12 October 2020 at 10:39am

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 114 (Aged Dependent Relative) – aged dependant relative of an Australian relative – wholly or substantially reliant – age requirement – sponsor visits his mother in Vietnam – visa applicant residing in sponsor’s house – medical issues – evidence of money transfers – decision under review remitted   

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, rr 1.03, 1.05; cls 114.211, 114.221
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 Immigration on 23 August 2019 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant was born in January 1933. She applied for the visa on 19 April 2010. The delegate refused to grant the visa on the basis that cl.114.221 was not met because the delegate was not satisfied the visa applicant was an aged dependant relative of her Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The review applicant appeared before the Tribunal on 13 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s brother. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

5. 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 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 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.114.221.

6. 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.

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.

8. 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).

9. 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].

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

10. The visa applicant claims to be a widow and she provided evidence of her husband’s death. The Tribunal is satisfied subparagraph (a) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.

11. 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. The visa applicant was born in January 1933. The Tribunal finds that she is old enough to be granted an aged pension and subparagraph (c) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.

12. The issue before the Tribunal is whether the applicant is dependent on her relative.

13. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant stated on the application form that she had been dependent on her two sons for 10 years and 3 years respectively prior to the application being made. In March 2019 the applicant provided evidence of her dependence on the sponsor. This included a statement from the sponsor in which he stated that he returned to Vietnam in 2014 to care for his mother and that he pays for food, shelter and clothes. It is stated that the visa applicant resides in the sponsor’s house, where he also lives, and that she does not receive any pension or salary, while her allowance equates to about AUD 21.50. The sponsor is also recorded to have stated that other relatives provide material support to the visa applicant, including his younger brother, child, nieces and nephew who reside in Australia.

14. The delegate noted that there was little documentary evidence of financial support provided by the sponsor to the applicant and that there was no evidence that the visa applicant was wholly or substantially reliant on the sponsor and that such reliance was greater than her reliance on any other source.

15. In oral evidence, the review applicant’s brother, Mr Phan told the Tribunal that due to his own condition, he has not been able to care for their mother and had to stay at home. His brother (the sponsor) had to travel to Vietnam for a couple of months at a time to take care of their mother. They have no other relatives in Vietnam and hope that their mother can join them in Australia. Mr Phan said that his brother cannot receive a pension because he does not live in Australia but he receives income from a rental property.

16. The review applicant told the Tribunal that the visa applicant stopped working about 20 years ago. She used to sell fruit at a market and stopped working because of her failing health. She suffered from backpain and was involved in an accident. She also has muscular pain and hypertension. The review applicant said there are no medical certificates in Vietnam but she visits a doctor. She has not had a formal medical assessment.

17. The review applicant said that since 2005 his mother has been living at his house. The review applicant said that he gave money to his mother to buy the property and initially it was in his mother’s name but later was transferred to his name. Before that she lived with her younger son. In 2005 his brother migrated to Australia so she came to live at his house while he was living in Australia. At the time his mother lived on her own. In 2014 he returned to Vietnam to look after his mother. Having regard to that evidence, the Tribunal accepts that the visa applicant has been residing at a residence owned by the sponsor. The Tribunal accepts that she wholly relies on the sponsor for financial support for shelter.

18. With respect to financial support from other sources, the review applicant said that from the age of 80, the Vietnamese government pays the equivalent of about $20 a month. He said that she does not receive any other pension because she was a small retailer at a market, so she has no retirement funds or superannuation or any other income. The review applicant told the Tribunal that he supports himself through the rental property in Australia. He receives about VND 12 million a month (AUD740) and he gives his mother about VND 3-4 million a month (AUD180-220). The review applicant said that he transfers the money from his account to his mother’s account. This has been happening since October 2019 after the decision to refuse the visa, on advice of a migration agent who told him that he needed evidence of transfers. Prior to that he was giving cash to his mother and his mother did not have a bank account before 2019. Prior to that the review applicant said he used to send money to his mother and has evidence of money transfers. The review applicant said that because he lived with his mother and was responsible for the financial affairs, eh did not think he needed evidence of transfers. The review applicant said that he started sending money to his mother a year after he came to Australia, around 1995.

19. The review applicant told the Tribunal that his brother sends money to their mother about every two months and he also gave money to her when he travelled to Vietnam. He has given her a few hundred dollars recently to buy an air-conditioner. The review applicant said that he gives money regularly to his mother, every month, while his brother’s contribution is not regular. He said there are no other relatives providing regular financial support.

20. The delegate found that there was little or no documentary evidence to support the claims. There is some additional documentary evidence before the Tribunal. The Tribunal has had the benefit of the review applicant’s oral evidence and found him to be a truthful witness. There is also before the Tribunal additional documentary evidence that was not before the delegate, particularly concerning the financial transfers since the time the application was made.

21. As noted above, the Tribunal found the review applicant to be a credible witness. The Tribunal accepts the review applicant’s evidence. The Tribunal accepts that the visa applicant has been living at his house since 2005 and has been reliant on him for shelter. The Tribunal accepts that the visa applicant has been receiving very little income since she turned 80 and had no help from the government prior to that. The Tribunal accepts that the review applicant has been transferring funds to his mother and that she has been reliant on his funds to meet her basic needs for clothing and food. The Tribunal also accepts that since 2014 when the review applicant returned to Vietnam, he has been living with his mother and has been fully financially supporting her for all her needs. The Tribunal is satisfied that the visa applicant has been wholly or substantially reliant on the sponsor for financial support to meet her basic needs for food, shelter and clothing. The Tribunal is satisfied such support is greater than support she receives from other sources.

22. The Tribunal accepts that when the application was made, and at the time of this decision, the visa applicant has been dependent on the sponsor. The Tribunal is satisfied that she is a dependent relative of the sponsor. The visa applicant meets cl. 114.211 and col. 114.221.

    Conclusion

23. 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

24. 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

    Kira Raif
    Senior Member