Rathnayaka Mudiyanselage (Migration)

[2018] AATA 1488

Rathnayaka Mudiyanselage (Migration) [2018] AATA 1488 (1 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Punchihamy Sirisena Rathnayaka Mudiyanselage

CASE NUMBER:  1606469

DIBP REFERENCE(S):  CLF2016/4073

MEMBER:Kira Raif

DATE:1 May 2018

PLACE OF DECISION:  Melbourne

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; and

·cl. 838.221 of Schedule 2 to the Regulations.

Statement made on 01 May 2018 at 3:27pm

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa  – Subclass 838 (Aged Dependent Relative) visa – aged dependent relative of an Australian relative –  Incapacitated for work due to the total or partial loss of the applicant’s bodily functions – Relies on son for financial support – various bank records provided – Lives with son in Australia – Decision under review remitted 

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03 , 1.05A Schedule 2 cls 838.111, 838.212, 838.221

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 27 April 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 Sri Lanka, born in December 1928. The applicant applied for the visa on 19 January 2016. 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 1 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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. 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.

6. Relevantly to this matter, the primary criteria to be met include cl.838.212. 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). 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?

7. The applicant claims to be a widow and she has provided a death certificate relating to her late husband. She meets subparagraph (a) of the definition of ‘aged dependent relative’. The applicant was born in 1928 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. The applicant claims to be dependent on the sponsor, who is her son.

8. The applicant presented with her application evidence relating to her finances. She provided her bank statements showing deposits but the delegate noted that the source of these deposits cannot be ascertained. The applicant’s evidence with her application is that her income is not sufficient to meet her needs and that the sponsor pays for her expenses by sending remittances and giving her cash during his visits. Evidence of some remittances has been submitted. The applicant stated that she started being dependent on the sponsor from 1990 when her husband fell ill. The applicant stated that she used some of her and her late husband’s pensions to pay for her expenses and the rest is covered by the sponsor. The applicant provided evidence of having transferred a property in Sri Lanka to the sponsor in 1996.

9. The delegate noted in the primary decision record that the applicant’s total income was Rs 61,600 while her expenses for basic needs were Rs 60,000, concluding that the applicant was reliant on her own income rather than the sponsor to meet her basic needs. The delegate was not satisfied the applicant’s dependence on the sponsor was greater than her dependence on other sources. The delegate also stated that the applicant did not establish incapacity.

10. In her written submission to the Tribunal of 24 April 2018 the applicant argues that her various expenses were not for ‘higher order needs’ and she outlined her expenses including medical costs and those associated with medical treatment, transport, wages to aid and other expenses. In her submission to the Tribunal of 1 May 2018 the applicant refers to another Tribunal decision in which wages for an assistant were considered for the purpose of dependence. The Tribunal is mindful, however, that such a decision has no precedential value for the Tribunal. The Tribunal accepts that it may be entirely reasonable for the visa applicant to have such expenses, including expenses for an assistant, and that she considers these to be ‘necessities’ but the Tribunal notes that the definition of dependence in r. 1.05A(1)(a) is limited to consideration of food, shelter and clothing.

11. The Tribunal notes that he applicant is close to 90 years of age. The applicant’s evidence is that she has problems with walking and problems with her knees and uses the walker. She also has problems with her eyesight and her hearing is not good. The Tribunal is satisfied, in particular given the applicant’s age, that the applicant is incapacitated for work due to the partial loss of her bodily or mental functions.

12. For the purpose of r. 1.05A(1)(b), it is not necessary to consider the applicant’s basic needs and it is also not necessary to assess whether the applicant’s reliance on her son is greater than her reliance on any other source.

13. The applicant’s evidence is that her pension just under Rs 60,000. She could not recall how much she receives from her son but states that she cannot survive without the support from her son. The applicant told the Tribunal that since entering Australia in November 2015 she has been living with her son and is dependent on her son. She said she uses her pension for charitable works while her living expenses are met by her son. The applicant said that before she came to Australia, she also received financial assistance from her son and relied on that support. The sponsor’s evidence is that he used to send larger amounts for specific needs and smaller amounts regularly through the bank for daily expenses. The sponsor provided to the Tribunal various bank records confirming his transfers. The sponsor also said he visited Sri Lanka regularly and gave money to his mother during each visit.

14. The Tribunal accepts the parties’ evidence. The Tribunal accepts that the sponsor has been sending money to his mother for a number of years and that the visa applicant relied on these funds to pay for her living expenses. The Tribunal is satisfied that the sponsor’s contribution to the applicant’s expenses was substantial and these funds were used for items including food, clothing, expenses associated with shelter, medication, wages for the servant and other expenses. The Tribunal is satisfied that the applicant has been relying on her son for financial support and that such support has been substantial. The Tribunal acknowledges that the applicant also relied on her pension but it is not necessary to establish that the applicant’s reliance on her son was greater than her reliance on any other source. The Tribunal is also satisfied that since the applicant’s entry to Australia in late 2015 she has been wholly financially reliant on the sponsor.

15. The Tribunal is satisfied that at the time the application was made, and at present, the applicant was at least substantially reliant on the sponsor for financial support because she was incapacitated for work due to the total or partial loss of the applicant’s bodily or mental functions. The Tribunal is satisfied the applicant met r. 1,05A(1)(b) at the time the application was made and also at the time of this decision. The Tribunal is satisfied that the applicant was an aged dependent relative at the time of application and continues to be an aged dependent relative at the time of this decision. The Tribunal is satisfied the applicant meets cl. 838.212 and cl. 838.221.

    Conclusion

16. 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

17. 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; and

    ·            cl. 838.221 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member