Rivera (Migration) - [2024] AATA 2990

Rivera (Migration) [2024] AATA 2990 (14 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Ofelia Gonzales Rivera
REPRESENTATIVE:  Mr Gareth John Lewis
CASE NUMBER:  2011940
HOME AFFAIRS REFERENCE(S):          CLF2018/178573
MEMBER:Margie Bourke
DATE:14 August 2024
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 and cl.838.221 of Schedule 2 to the Regulations.

Statement made on 14 August 2024 at 12:29pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – aged dependent relative of an Australian relative – Philippines Negative Certification of Birth – statutory declarations by family members – applicant granted a dependent temporary visa – substantial reliance – reasonable period – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2 cls 838.111, 838.212, 838.221; 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 July 2020 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 17 July 2018. 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 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.838.212 which requires the visa applicant is an aged dependent relative of an Australian relative at the time of application, and cl.838.221 which requires the visa applicant continues to be an aged dependent relative of an Australian relative at the time of decision.
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 met the definition of aged dependent relative, as defined in reg 1.03, at the time of application.
The Tribunal has considered the information provided to the Department and the matters in the Department’s decision record dated 7 July 2020. The Tribunal has considered the information provided to it. The Tribunal is satisfied that it can make a decision favourable to the review applicant based on the information available to it, without proceeding to a hearing, pursuant to s.360(2)(a) of the Act.
The applicant was represented in relation to the review.
The following are the written reasons that the Tribunal has concluded the matter should be remitted back to the Department for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa application was made on the basis that the applicant is the aged dependent relative of Jovy Aura Alejandro Carpio, who the 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).
In this case is Jovy Aura Alejandro Carpio is an Australian permanent resident and is the applicant’s niece.
Is the applicant an aged dependent relative of an Australian relative?
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 reg 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 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).
Reg 1.03 defined aged dependent relative in relation to a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen means a relative who: (a) does not have a spouse or de facto partner; and (b) has been dependent on that person for a reasonable period, and remained so dependent; and (c) is old enough to be granted an age pension under the Social Security Act 1991.
Is the applicant a relative of the sponsor?
The delegate recorded in the Department’s decision record that the Department was not satisfied that the applicant was the aunt of the claimed Australian relative. I have considered the information provided and I am satisfied that the applicant was born in 1937 and her birth was not registered. I am satisfied based on the statutory declaration of the applicant that she is unable to provide an affidavit from a living witness to her birth in 1937 in order to obtain a late registration of her birth.
I have considered the country information provided by the applicant from the Philippine Statistics Authority which advises that the authority cannot provide a birth certificate for a person born before 1945 as civil registry records in the electronic and paper archives cover births, marriages and deaths that occurred starting in 1945. I am satisfied that the civil registry records for births prior to 1945 issue a document described as a negative birth certificate in circumstances where a person’s birth was not registered and they are unable to provide a living witness to the birth.
I am satisfied based on the Negative Certification of Birth from the Philippine Statistics Authority that the office of the Civil Registrar General does not have any record of the birth of the applicant, but has issued the Negative Certification of Birth recording the applicant’s name, date of birth, place of birth and the name of her parents.
I have considered the statutory declaration of the applicant dated 8 August 2024, the statutory declaration of the applicant dated 29 May 2020, the statutory declaration of the sponsor dated 6 August 2024, the statutory declaration of the sponsor dated 29 May 2020, the statutory declaration of the sponsor dated 10 August 2020, the statutory declaration of the sponsor dated 12 July 2018, the affidavit of the sponsor dated 23 June 2015, the statutory declaration of the applicant’s sister dated 8 August 2024, the statutory declaration of the applicant’s sister dated 4 August 2020 (who was born in 1947 and provided a copy of her late registered birth certificate), the statutory declarations of the sponsor’s sister Jo-Anne Carpio Ortega dated 5 August 2024 and dated 7 July 2020, the statutory declaration of the sponsor’s sister Joni Adelle Carpio Carpio dated 5 August 2024 and 18 July 2020, the statutory declaration of the husband of the sponsor’s sister Jo-Anne Carpio Ortega dated 25 July 2020 and the letters in support provided by the two grand nieces and one grandnephew of the applicant dated August 2024.
I am satisfied based on all the evidence provided that the applicant is unable to provide a birth certificate. I am satisfied based on all the evidence provided that the applicant is the aunt of the sponsor Jovy Aura Alejandro Carpio.
The definition of relative in reg 1.03 includes aunt, uncle, niece or nephew of a person.
I am satisfied based on the information provided that on 4 September 2014 the sponsor and the applicant were granted a temporary 457 visa. Furthermore the applicant in this review was granted the subclass 457 visa on the basis that she was accepted as the elderly dependent of her niece, the sponsor in this application, Jovy Aura Alejandro Carpio. I am satisfied that her relationship with the sponsor was recognised by the Department in 2014. I am satisfied that the sponsor has subsequently been granted an Australian permanent residence visa.
For the above reasons I am satisfied that the applicant is a relative of a person who is an Australian permanent resident.
In this case, the applicant the ‘relative’ of an Australian relative for the purposes of cl 838.212.
Does the applicant have a spouse or de facto partner?
I am satisfied based on all the evidence provided to the Department and to the Tribunal that the applicant does not have a spouse or de facto partner. I am satisfied the applicant has never had a spouse or de facto partner. I am satisfied that at both the time of application and continuing at the time of decision that the applicant does not have a spouse or de facto partner.
For these reasons the applicant meets the requirements of subparagraph (a) of the definition of ‘aged dependent relative’ at both the time of application and at the time of decision.
Is the applicant dependent on the Australian relative?
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).
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].
I have considered the statutory declarations provided by the applicant, the sponsor, the applicant’s sister, and the sponsor’s two sisters and brother-in-law. I am satisfied that the applicant resided with her sister for most of her life, and after 2014 the applicant has resided with her niece Jovy Aura Alejandro Carpio. I am satisfied based on the information provided by the family, that the sponsor obtained work in Australia in 2011, and provided financial support to her aunt from that time. I am satisfied that after the sponsor and the applicant were both granted the subclass 457 visa in 2014 that the applicant has resided primarily with the sponsor in Australia.
I have considered the statutory declarations of work colleagues and friends of the sponsor, including that of Sonia Gagliardi dated 15 July 2020, Julie-Anne Thring dated 13 July 2020, Erica Caldwell dated 18 July 2020 and Ellette Sulib Husband dated 20 July 2020. I am satisfied that these statutory declarations are from four colleagues and friends of the sponsor who visited her between the years of 2016 to 2017 or 2014 to 2017, and confirm that the sponsor resided with her mother, her son and her aunt, the applicant Ofelia Rivera.
I am satisfied that the appropriate period to consider whether a person has been dependent for a “reasonable period” as required in the definition of aged dependent relative, is considered to be three years.
I am satisfied that the sponsor has provided accommodation for the applicant since 2014. I am satisfied that the date of the visa application is 17 July 2018, and the assessment of dependency over a three-year period at the time of application is from July 2015 to July 2018.
I am satisfied that the sponsor did not provide the applicant with an allowance for her basic needs, but provided her with her needs including food, clothing, medical costs and transport in addition to accommodation. I am satisfied that the sponsor paid the rent for their home in which she resided with the applicant as well as her mother and son. I am satisfied the sponsor paid the utility bills for the home, the grocery expenses and other needs including clothing and other personal items required by the applicant. I am satisfied that the sponsor’s sisters did not provide financial support, but did provide gifts to the applicant, some of which included clothing and shoes. I am satisfied based on the financial records provided that the sponsor can identify the financial support provided for the household, which includes the financial support for the applicant’s daily needs.
I am satisfied based on the information provided to the Tribunal that the sponsor’s financial support for the applicant’s daily basic needs of food, clothing and shelter continues to the time of decision.
I am satisfied that at the time of application the applicant was and had been for a period of three years immediately before that time wholly or substantially reliant on the sponsor for financial support to meet her basic needs for food, clothing and shelter. Further I am satisfied that the applicant’s reliance on the sponsor is greater than her reliance on any other person, or source of support, for financial support to meet her basic needs for food, clothing and shelter.
I am satisfied that at the time of this decision the applicant continues to be wholly or substantially reliant on the sponsor for financial support to meet her basic needs for food, clothing and shelter. I am satisfied that the applicant’s reliance on the sponsor for financial support to meet her basic needs for food, clothing and shelter has continued since the time of application. I am satisfied that at the time of decision the applicant’s reliance on the sponsor continues to be greater than her reliance on any other person, or source of support, for financial support to meet her basic needs for food, clothing and shelter.
Accordingly, I am satisfied that the applicant is dependent upon the sponsor for financial support within the meaning of reg 1.05A at both the time of application and at the time of decision.
For these reasons the applicant meets the requirements of subparagraph (b) of the definition of ‘aged dependent relative’ at both the time of application and at the time of decision.
Is the applicant old enough to be granted an age pension?
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 (Cth). Different age qualifications apply for men and women and depend upon the date of the applicant’s birth.
I am satisfied based on all the information before me that the applicant was born in 1937, and at the time of application, namely 17 July 2018 the applicant was aged 81 years of age. Therefore the applicant is old enough to be granted an aged pension under the Social Security Act 1991, at the time of application and at the time of this decision.
For these reasons the applicant meets the requirements of subparagraph (c) of the definition of ‘aged dependent relative’ at the time of application and at the time of decision.
Conclusion
For the reasons set out above, the Tribunal is satisfied that the applicant meets the definition in reg 1.03 of aged dependent relative at the time of application and at the time of decision.
The Tribunal is satisfied that the applicant is the aged dependent relative of an Australian relative at the time of application and continues to be the aged dependent relative of an Australian relative at the time of decision for the purposes of cl.838.212 and cl.838.221.
Accordingly, I am satisfied that the applicant meets the requirements of both cl.838.212 and 838.221.
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 838 visa.
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 and cl.838.221 of Schedule 2 to the Regulations.
Margie Bourke
Senior Member