Shariff (Migration)

[2021] AATA 4184

Shariff (Migration) [2021] AATA 4184 (18 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdul Shariff

CASE NUMBER:  1824132

HOME AFFAIRS REFERENCE(S):          CLF2017/22198

MEMBER:Andrew McLean Williams

DATE:18 August 2021

PLACE OF DECISION:  Brisbane

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:

·clauses 838.212 and 838.221 of Schedule 2 to the Regulations.

Statement made on 18 August 2021 at 2:39pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – ‘aged dependent relative’ – biological son – ‘wholly or substantially reliant’ – age pension age – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A; Schedule 2, cls 838.212, 838.221

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 Home Affairs on 17 August 2018 refusing to grant the Applicant an ‘Other Family (Residence)’ (Class BU) visa, under s 65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant applied for the visa on 15 March 2017. 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, the primary criteria to be met include cl 838.212, and cl. 838.221.

3. The Delegate refused to grant the visa on the basis that cl 838.212 was not met because the Delegate could not be satisfied that the evidence available at that time sufficiently demonstrated that the Applicant was ‘wholly or substantially reliant’ on his son and sponsor in Australia, Mr Afzal Shariff.

4. The applicant appeared before the Tribunal on 14 July 2021. The Tribunal also received oral evidence from Mr Afzal Shariff, and from his wife, Mrs Pratibha Shariff.

5. The applicant was represented in relation to the review by his registered migration agent Mukesh Chand (MARN 0962241). The representative attended the Tribunal hearing by telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa application was made on the basis that the Applicant is the aged dependent relative of Mr Afzal Shariff 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).

8. In this case Mr Afzal Shariff is the biological son of the Applicant, and is an Australian citizen.

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

9. 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.

10. 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).

11. In this case, the Applicant is the ‘relative’ of an Australian relative for the purposes of cl 838.212.

    Does the applicant have a spouse or de facto partner?

12. The Applicant is a widower whose wife died many years ago, in 1988.  The Applicant has not since remarried, and does not have another spouse or de facto partner. For these reasons subparagraph (a) of the definition of ‘aged dependent relative’ is met both at the time of application and at the time of decision.

    Is the applicant dependent on the Australian relative?

13. 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).

14. 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].

15. In this case the Applicant is a citizen of Fiji who worked for many years in the Fiji Civil Service.  The Applicant retired from the Fiji Civil Service in 1987 taking his pension entitlements at that time in the form of a lump sum payment.  Based on the evidence heard before the Tribunal it would seem that the majority of the Applicant’s pension entitlements were then used by him in order to provide for the education of his now adult children, all of whom now reside in either Australia or New Zealand. 

16. After retirement from the Fiji Civil Service the Applicant worked on a subsistence basis as a small-scale tenant farmer, until about 2002.  At that time the leasehold over the farm was transferred into the name of one of his sons, Abdul Shaheed, who at that time was still living in Fiji, whereupon the Applicant entered fulltime retirement.  Thereafter, the Applicant continued to live in the same house on the farm that he had originally built for he and his wife and food was provided for him by his son Abdul Shaheed.  Meanwhile, the majority of the Applicant’s other necessary expenses of living in Fiji were all met by his sponsoring son in Australia, Mr Afzal Shariff.  

17. Mrs Pratibha Shariff informed the Tribunal that either herself or her husband, or both of them together had travelled back to Fiji dozens of times over the years in order to check on the welfare of the Applicant, each time taking him money and medicines.  In addition, they have brought the Applicant to Australia for many visits over the years, each time paying for all of his requirements, as well as periodically sending money to the Applicant in Fiji by means of wire transfer.

18. Abdul Shaheed was unable to make the farm acquired by him from the Applicant financially viable.  Eventually, in about 2016 he resolved to immigrate to New Zealand, in order to be closer to his own adult children, such that he relinquished the lease on that farm.  This would have left the Applicant alone in Fiji as an elderly widower with no other family in Fiji to assist him, nor any means to continue to pay the lease payments on the land.  For this reason, in 2016, Afzal Shariff and his wife resolved to bring the Applicant to Australia, before assisting him to lodge an application for an aged dependent relative visa on 15 March 2017.  Mr Afzal Shariff informed the Tribunal that his other siblings are not in any financial position wherein they could take care of the Applicant, such that the responsibility to do so is a matter that has fallen to him and his wife.

19. On the basis of the oral evidence heard before the Tribunal, all of which is now accepted, the Tribunal is satisfied of the following:

    ·the Applicant was at the date of Visa application and for a substantial period immediately prior to that time, ‘substantially reliant’ on Afzal Shariff and his wife for financial support to meet his basic needs; and

    ·the Applicant’s reliance on that financial support was greater than any reliance on any other person, or source of support, for financial support to meet the Applicant’s basic needs

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

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

21. 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.

22. In this case the Applicant was born on 1 June 10932, such that he is currently 89 years of age and is thus old enough to be granted an aged pension under the Social Security Act 1991 (Cth). The Applicant was also of pensionable age at the time of his originally applying for a Subclass 838 visa, on 15 March 2017.  For these reasons subparagraph (c) of the definition of ‘aged dependent relative’ is met both at the time of application and at the time of decision.

23. 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.

24. 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

25. 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 of the Regulations.

    Andrew McLean Williams
    Member