RAJANAYAGAM (Migration)

[2019] AATA 2700

RAJANAYAGAM (Migration) [2019] AATA 2700 (10 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Marie Antoinette RAJANAYAGAM

CASE NUMBER:  1718721

DIBP REFERENCE(S):  CLF2015/10302

MEMBER:Justin Owen

DATE:10 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 838 (Aged Dependent Relative) visa:

·cl.838.212 of Schedule 2 to the Regulations

·cl.838.221 of Schedule 2 to the Regulations

Statement made on 10 May 2019 at 4:34pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) – Subclass 838 (Aged Dependent Relative) – Federal Circuit Court remittal – dependent on Australian relative – reliant upon son for financial support to meet basic needs for food, clothing and shelter for substantial period – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05, Schedule 2, cls 838.111, 838.212, 838.221.
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 30 July 2015 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 applied for the visa on 19 February 2015. At that time, 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. The criteria for a Subclass 838 visa are set out in Part 838 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.838.212.

3. The delegate refused to grant the visa on the basis that cl.838.212 was not met because the delegate was not satisfied that the applicant met the requirements of an Aged Dependent Relative as defined in Regulation 1.03.  The delegate found that she was not satisfied that the applicant is, and has been for a substantial period of time, wholly or substantially reliant on the sponsor for her basic needs for food, clothing and shelter.  The delegate’s decision of 30 July 2015 was affirmed by a differently constituted Tribunal on 15 June 2016.

4. The applicant for review of the Tribunal’s decision. On 11 August 2017 the Tribunal’s decision was quashed by the Federal Circuit Court by consent. The Minister conceded that the Tribunal’s decision was affected by jurisdictional error for reason of a failure of the Tribunal to consider a claim, or an integer of a claim, to the effect that the applicant was ‘incapacitated for work due to total or partial loss of bodily function’ for the purposes of subparagraph 1.05A(1)(b) of the Migration Regulations. This claim had been raised by the applicant in her post-hearing submission to the Tribunal. A writ of mandamus was issued requiring the Tribunal to reconsider and determine the applicant’s application of 19 February 2015 according to law.

5. The applicant appeared before the Tribunal on 7 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son and sponsor, Mr Gerard Rajanayagam.

6. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The visa application was made on the basis that the applicant is the aged dependent relative of Mr Gerard Rajanayagam who the applicant claims is their 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).

9. In this case Mr Gerard Rajanayagam is an Australian citizen and is the applicant’s son.

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

10. To be granted a Subclass 838 visa the applicant 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.838.212, cl.838.221 and cl.838.111. ‘Aged dependent relative’ is defined in r.1.03 of the Regulations.

11. 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.

12. The Tribunal is satisfied on the evidence before it that the applicant is the mother of the sponsor, an Australian citizen.  The Tribunal is satisfied that the sponsor is the youngest son of the applicant.  In this case, the applicant is the ‘relative’ of an Australian relative for the purposes of cl.838.212 and cl.838.221.

    Does the applicant have a spouse or de facto partner?

13. The applicant married Mr Saverimuthu Lionel Paul Rajanayagam on 29 August 1967 (D1, Folio.82).  The applicant’s husband deceased on 2 September 1986 at 47 years of age (D1, Folio.81).  The Tribunal has sighted certified copies of the death certificate of the applicant’s husband.  The applicant in her oral testimony confirmed at the Tribunal hearing that she did not re-marry after the untimely death of her husband.  The applicant stated to the Tribunal she does not have a spouse or de facto partner.  The Tribunal accepts the applicant’s evidence.      

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

    Is the applicant dependent on the Australian relative?

15. 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).

16. 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].

17. The Tribunal has reviewed the evidence that the applicant previously presented to the delegate, to the differently-constituted Tribunal as well as new corroborative evidence pertaining to her dependence on her son the sponsor at the relevant time and for a substantial period immediately prior to that time. 

18. The Tribunal notes that the applicant has spent a significant time residing with her son the sponsor.  The applicant has lived with the sponsor continually since December 2014 – albeit with a visit to Sri Lanka – at his home in Stanhope Gardens and for the last two years in Kellyville.  The applicant lives with her son, daughter in law and grandchildren.  The applicant first commenced residing with her son in November 2011 and remained living in Australia with her son and his family until June 2013.  In June 2013 she returned to live in Sri Lanka for ten months before travelling to the United Kingdom to live with her other son between April and October 2014.  After departing the United Kingdom she briefly again resided in Sri Lanka before returning to the sponsor’s home in Australia in December 2014.  In February 2015 the applicant lodged her Aged Dependent Relative visa application.

19. The applicant is a retired school teacher in receipt of a government pension.  At the time of application the pension was around 40,000 Sri Lankan rupees per month.  At the time of decision the pension is around 57,000 Sri Lankan rupees per month or about 464 Australian dollars.  The applicant is only however able to access and draw down the pension whilst physically in Sri Lanka.  The pension accumulates whilst the applicant is offshore.

20. The Tribunal found the oral testimony of the applicant and the sponsor pertaining to the years she has spent in Australia since 2011 to be consistent and factual.  The Tribunal accepts the claims made that the applicant during her time in Australia has been wholly or substantially reliant upon her son the sponsor for financial support to meet her basic needs for food, clothing and shelter.  The applicant lives in a room with bathroom downstairs at the sponsor’s residence.  She lives rent free.  Her needs for food are taken care of via the usual shopping for food the sponsor and the applicant’s daughter in law undertake for the household.  The sponsor provides financial support for clothing when needed.  The Tribunal also notes the evidence submitted dating back to 2011 where the sponsor is funding the applicant’s private health insurance.  The Tribunal is entirely satisfied that in the period November 2011- June 2013 and since December 2014 until the time of decision that the applicant is wholly or substantially reliant upon her son the sponsor for financial support to meet her basic needs. 

21. The Tribunal has examined the period of time the applicant was not residing with the sponsor in Australia in the ‘substantial period’ immediately prior to the relevant time when she lived in the United Kingdom and in Sri Lanka.  The Tribunal notes that the delegate interpreted a ‘substantial period’ immediately prior to the applicant’s visa application to be a three year period (as per Departmental guidelines (PAM3)).  The Tribunal notes that this is one interpretation of the term ‘substantial period’ but also notes the decision of the Full Court in Huang v MIMIA [2007] FMCA 720 at [47] and its interpretation of a ‘substantial period’ of being not more substantial than a ‘reasonable period.’

22. The Tribunal notes that the applicant spent 525 days in Australia and 571 days outside of Australia in the three years prior to her visa application.  The Tribunal has reviewed the period whilst the applicant was outside of Australia and on the evidence before it is satisfied that the applicant remained at least substantially reliant upon the sponsor during this period.   

23. The Tribunal notes the evidence of the applicant pertaining to the period between June 2013 and April 2014 whilst she lived in the Sri Lanka.  The applicant presented evidence of seven separate payments (D1, Folios 51, 54-59) from the sponsor to the applicant amounting to AUD$3,504 (including commission).  The Tribunal furthermore notes that the sponsor travelled to Sri Lanka to look after the applicant after she was badly injured in a fall in October 2013.  At the hearing the sponsor said that he assisted the applicant pay for her medical bills (they were also paid out of her pension) and he provided his mother with cash to assist pay for her bills as well as to assist in her general living expenses: between AUD$2,000 and $3,000.  The Tribunal is prepared to accept the oral testimony of the sponsor and the applicant that he provided these funds to assist his frail and unwell mother after travelling to Sri Lanka.  Such behaviour would be entirely consistent with the demonstrated care and support he has shown to the applicant in Australia both before and since her accident and injuries in Sri Lanka.   The Tribunal notes that during this ten month period in Sri Lanka the applicant was receiving her pension that at the time was 40,000 Sri Lankan rupee or approximately AU$360 per month.  That would amount to $3,600.  The Tribunal considers this amount to be substantially less than that which it accepts was provided by the sponsor to the applicant during this period.  The Tribunal notes that even if it were to assume that the sponsor had provided no further support to his mother the applicant beyond the documented funds transfers – an absurd proposition given he travelled to Sri Lanka to look after his mother after her fall – the support from the sponsor quantified in his documented funds transfers during this period is around the same as the applicant’s pension and, in the Tribunal’s view, would still represent a ‘substantial’ reliance of the applicant on the sponsor to meet her basic needs for food, clothing and shelter. 

24. The Tribunal furthermore notes the applicant was a resident of Village 60, a retirement village and paying 60,000 Sri Lankan rupees or around AU$540 per month.  Her pension only met two-thirds of this cost (D1, Folios 51-59).  The applicant asserted that on top of this she had other needs for clothing, other foods and medical expenses which were in addition to this 60,000 Sri Lankan rupees expense per month, meaning her total costs were approaching 100,000 Sri Lankan rupees.  The applicant provided information pertaining to the cost of living in Colombo in support of her submissions.  The applicant asserts that the sponsor ultimately provided the majority of her financial support for her basic needs during this period. 

25. The Tribunal is satisfied on the evidence before it that the applicant was substantially reliant upon the sponsor for her basic needs for food, clothing and shelter whilst residing in Sri Lanka between June 2013 and April 2014.  The Tribunal finds the sponsor was providing greater financial support to the applicant than she received from her own pension. The Tribunal finds that the applicant was substantially reliant upon the sponsor as the source for her financial support over this period.  

26. The Tribunal discussed with the applicant the six months she lived in the United Kingdom between April and October 2014.  The applicant did not have access to her Sri Lankan pension during this period.  The applicant conceded that she resided principally with her other son and his family during this time.  In oral evidence to the Tribunal hearing the applicant stated that her UK-residing son looked after her living expenses during this period.  Her son and his family provided her with shelter and food and her general needs.  It is agreed that the applicant was substantially reliant upon her other son who resides in the United Kingdom to meet her basic needs for food, clothing and shelter during this time.  The Tribunal notes that the sponsor nevertheless continued to fund the applicant’s private health insurance and did send AU$235 to the applicant on 24 June 2016.  The applicant and sponsor each stated that the sponsor also purchased the applicant’s plane ticket to London.    The Tribunal nevertheless finds that the applicant was substantially reliant upon her other son who resides in the United Kingdom as the source for her financial support over this period of six months.  

27. The applicant spent a brief two month period in Sri Lanka between departing the United Kingdom and arriving in Australia in December 2014.  The sponsor made two payments amounting to AU$300 to the applicant during this period.  The Tribunal notes that the applicant’s pension would have accumulated during the six months she was in the United Kingdom and suggests that this combined with her on-going pension meant that the applicant was, in the Tribunal’s opinion substantially reliant upon her own finances during this two-month period.

28. The Tribunal is entirely satisfied that the applicant was wholly or substantially reliant upon her son the applicant for financial support to meet her basic needs for food, clothing and shelter since the time of application up until the time of decision. 

29. In the three years leading up to the application being lodged in February 2015, the Tribunal is entirely satisfied that the applicant was wholly or substantially reliant upon her son the applicant for financial support to meet her basic needs for food, clothing and shelter whilst she resided in Australia.  This means from February 2012 until June 2013 and December 2014 until February 2015 – a period of eighteen months – the Tribunal finds the applicant was wholly or substantially reliant upon the sponsor.  The Tribunal furthermore finds that the applicant was substantially reliant upon the sponsor for these basic needs whilst she resided in Sri Lanka for the ten months between June 2013 and April 2014. 

30. On the evidence before it the Tribunal is not satisfied the applicant was wholly or substantially reliant upon her son the applicant for financial support to meet her basic needs for food, clothing and shelter for either the six months she resided with her other son in the United Kingdom between April and October 2014 and the two months between October 2014 and December 2014 when she resided in Sri Lanka.

31. The Tribunal accepts there have been limited periods prior to the lodgement of the applicant where the applicant was not at that specific time wholly or substantially reliant upon the sponsor.  The Tribunal considers the applicant was wholly or substantially reliant upon the sponsor for a significant and indeed the vast majority of the time prior to the lodgement of the application.         

32. The Tribunal also notes that the applicant did reside with the sponsor in Australia and, in the Tribunal’s view, was wholly or substantially reliant upon the sponsor to meet her basic needs in the three months leading in to this three year period commencing in February 2015.

33. The Tribunal finds that the applicant was at the relevant time and for a substantial period of time immediately prior to that time wholly or substantially reliant on her son the sponsor for financial support to meet her basic needs for food, clothing and shelter: r.1.05A(1)(a)(i)

34. The Tribunal has considered whether the applicant’s reliance on her son the sponsor is greater than any reliance on any other person, or source of support, to meet her basic needs for food, clothing and shelter. 

35. The Tribunal noted that between 2007 and 2011 the applicant lived with her daughter in the United States.  The applicant said that she could no longer reside with her daughter due to the vastly increased needs her daughter faced raising her own daughter who had been diagnosed with autism and a number of other disabilities.  The applicant and sponsor stated that the applicant’s daughter does not provide any level of assistance to the applicant.  The Tribunal accepts this evidence and accepts that the applicant is not reliant upon her daughter to meet her basic needs.

36. The Tribunal enquired as to support from her other son that resides in the United Kingdom.  The applicant said he sends gifts for special events like birthdays and Christmas but he has his own wife, children and career as a solicitor in the UK.  The Tribunal accepts that the applicant is not reliant upon her UK-residing son to meet her basic needs for food, clothing and shelter. 

37. The Tribunal asked the applicant and the sponsor about the applicant’s reliance upon any other person or source of support beyond her children.  The applicant mentioned her cousin in Sri Lanka, Rev. Sister D.M. Swampillai has helped care for her but she as a nun has recently been transferred to Jaffna, around ten hours’ drive from the applicant’s home in Sri Lanka.  Whilst the applicant and Sister Swampillai have shared a joint bank account in the past, there is no evidence that Sister Swampillai is providing the applicant with any financial support to meet her basic needs for food, clothing and shelter.  There is no other evidence before the Tribunal of the applicant’s reliance on any other party to meet her basic needs for food, clothing and shelter.   

1. The Tribunal has examined the pension the applicant has received from the Sri Lankan Government since her retirement as a school teacher.  While the Tribunal accepts that the applicant did rely upon the pension she received whilst living in Sri Lanka, it was ultimately not greater than the applicant’s reliance upon her son the sponsor to meet her basic needs for food, clothing and shelter.  She did receive some support from her other son whilst in the UK but again ultimately her reliance for a substantial period of time leading to the lodgement of the application was not greater than her reliance upon the sponsor. In coming to this decision the Tribunal took into account the substantial evidence of the sponsor’s financial support for his mother the applicant since she first resided with him in Australia at the end of 2011.  It took into account the evidence of sums of money provided to the applicant by the sponsor over many years.  It took into account the evidence that the applicant has been living with the sponsor and his family now for many years.  The Tribunal also took into account the applicant and sponsor’s consistent, detailed and spontaneous oral testimony at the hearing.  On the evidence before it the Tribunal is satisfied that the applicant’s reliance upon the sponsor is greater than any reliance on any other person, or source of support, to meet her basic needs for food, clothing and shelter: r.1.05A(1)(a)(ii).   

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

3. Given the Tribunal finds that the applicant meets r.1.05A(1) through meeting the requirements of r.1.05A(1)(a), the Tribunal is not required to make a finding as to whether the applicant is wholly or substantially reliant upon the sponsor for financial support because the applicant is incapacitated for work due to the total or partial loss of her bodily or mental functions: r.1.05A(1)(b).  The Tribunal nevertheless notes the applicant’s claim through her representative that r.1.05A(1)(b) is applicable to her with the assertion that the applicant is incapacitated for work due to total or partial loss of bodily function (T1, Folio.40). The Tribunal on the evidence before it does not accept this assertion but is required to make no finding.          

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

4. To meet the definition of ‘aged dependent relative’ the applicant 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 the applicant’s birth.

5. The applicant was 76 years of age at the time of application and 80 years of age at the time of decision.  An aged dependent is defined as someone who is old enough to be granted an aged 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 at the time of decision.

   Conclusion

6. Having had regard to all the evidence, the Tribunal is satisfied that the applicant meets regulation 1.05A(1) and therefore meets regulation 1.03(b) at the time of application and the time of decision as the applicant was dependent on the sponsor for a substantial period, and remains so dependent. 

7. 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.838.212 and cl.838.221.

8. 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 838 visa.

   DECISION

9. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 838 (Aged Dependent Relative) visa:

   · cl.838.212 of Schedule 2 to the Regulations

   · cl.838.221 of Schedule 2 to the Regulations

   Justin Owen
   Senior Member