Spies (Migration)

[2020] AATA 1110

Spies (Migration) [2020] AATA 1110 (26 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Hester Cornelia Spies

CASE NUMBER:  1822298

DIBP REFERENCE(S):  CLF2016/95790 CLF2018/180075

MEMBER:Adrienne Millbank

DATE:26 March 2020

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:

·cl.838.212 of Schedule 2 to the Regulations

·cl.838.221 of Schedule 2 to the Regulations.

Statement made on 26 March 2020 at 4:06pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – dependency – wholly or substantially reliant on sponsor for basic needs – applicant’s ability to self-support financially – proceeds from sale of business and investment properties – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 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 Immigration on 25 July 2018 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958.

2. The applicant was born in South Africa in 1945 and was 71 years old at the time of application. She is 74 years old at the time of decision. The sponsor, the applicant’s son, was born in South Africa in 1975. He was granted a permanent skilled migration (Subclass 176) visa in December 2009, and has lived in Australia since 2012.

3. The applicant first arrived in Australia on 25 August 2012 on a Visitor (Subclass 676) visa. She travelled on this occasion with the sponsor, her son. She departed in October 2012.  The applicant’s movement records indicate that she spent the following periods in Australia on Visitor (Subclass 600) visas:

   • 24 July 2013 to 20 January 2014 (six months);
   • 9 March 2014 to 2 February 2015 (11 months);
   • 7 March 2015 to 15 December 2015 (nine months).

4. The applicant returned to Australia on 28 January 2016 and has not left the country since this time.

5. The applicant applied for the visa on 12 December 2016. 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.

6. The delegate refused to grant the visa on the basis that cl.838.212 was not met because r.1.05A(1)(a)(ii) was not met.

7. The delegate noted in the decision record that to satisfy r.1.05A(1)(a)(ii) the applicant had to  demonstrate that her reliance on her sponsor to meet her basic needs was greater than on any other source of income. The delegate acknowledged that the sponsor had supported the applicant in Australia since her arrival on her tourist visa, and that the sponsor had provided financial assistance to the applicant when she was residing in South Africa. The delegate was not satisfied, however, that the applicant did not have access to funds from her former property investments and real estate business which she could have used for her self-support. The delegate therefore was not satisfied that the applicant was wholly or substantially reliant on the sponsor.

8. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The visa application was made on the basis that the applicant is the aged dependent relative of Mr Gideon Steyl who the applicant claims is her relative. 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).

11. In this case Mr Gideon Steyl is a permanent resident and is the applicant’s son.

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

12. 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.

13. 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.

14. A copy of the sponsor’s birth certificate was provided, certifying him to be the son of the applicant. Copies of the parties’ South African passports were provided, further confirming their identity. The Tribunal is satisfied that 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?

15. The applicant has had two husbands. A copy of a death certificate issued on 7 September 2015 was provided, certifying the death on 3 September 2015 of the applicant’s first husband, Mr Jacobus Steyl, the father of the sponsor. In a statutory declaration signed on 17 March 2020 provided to the Tribunal the applicant stated that she remarried but that her second marriage, to Mr Barend Spies, ended in divorce. A copy of the divorce certificate was provided, certifying that the applicant and Mr Barend Spies divorced on 2 August 2007.

16. The Tribunal accepts on the evidence provided that the applicant does not have a spouse or a de facto partner, and therefore subparagraph (a) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.

    Is the applicant dependent on the Australian relative?

17. 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).

18. 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].

19. In her statutory declaration of 17 March 2020 the applicant declared she had no children from her second marriage, and that her second husband ‘never contributed financially to the household or the education of my children’. She stated that following the death of her first husband she earned her own income and supported herself and her children. She stated that she has been financially supported by and reliant on the sponsor since 2008, when she stopped earning an income sufficient to support herself and had to sell her properties and her business to pay off debts.

20. Evidence was provided in the form of property transfer documents, and bank letters and statements that the applicant sold residential properties and a real-estate business she owned in South Africa, and that proceeds from these sales were used to pay down borrowings. The applicant advised that she made a bad investment on a farm in 2007; that she borrowed money for this investment based on the properties she owned; and that she narrowly escaped bankruptcy. A copy of a bank letter dated 29 April 2011 was provided in which the applicant was warned that her failure to pay her account would result in her remaining property being sold at auction.

21. The applicant claimed that detailed records from her real estate business in South Africa were stored by family members and friends when she had to sell the premises, and became water damaged, and for this reason she was unable to provide more detailed information about her former business to the Department.  

22. The applicant described in her statutory declaration of 17 March 2020 how the sponsor purchased her house in South Africa from her in 2008 when she stopped earning an income and was unable to pay the mortgage. She stated that apart from a brief time following the sponsor’s marriage in 2005 she has always lived in the same household as the sponsor; that since his marriage she has been an integral part of his family; and that in recent years she has particularly helped to care for the sponsor’s daughter, her grandchild, who has had learning difficulties.

23. Evidence was provided in the form of a copy of a General Power of Attorney statement dated 24 August 2012, that the applicant had full access to a bank account of the sponsor in South Africa. In her declaration of 17 March 2020 the applicant stated that she used the funds in the sponsor’s account for her housing costs including maintenance, utility bills and rates, and for her food, clothes and medical expenses. She further stated that she drew on the sponsor’s account for her airfares to and from Australia. As noted, the sponsor had migrated to Australia by 2012.

24. Evidence was provided in the form of property transfer documents that the sponsor sold the house in South Africa in January 2013.

25. Evidence was provided that the applicant is in receipt of a pension which pays the amount of AUD54 per month. She advised in her declaration that she has used the pension fund monies to pay the premiums for two life insurance policies in South Africa, which are only able to be paid out after her death. She declared that the only funds she has are in a bank account in South Africa and her only income from all other sources is from the sponsor.

26. Evidence was provided in the form of statements from a bank in Bloemfontein that as at 31 January 2020, the applicant held AUD4,152 in her bank account in South Africa, and that from April 2012 to March 2013 she received a pension of AUD62.54 a month. Statements of transactions from the applicant’s bank account in Australia from January 2018 to January 2020 addressed to the applicant show the sponsor has transferred a sum of AUD200 a month to the applicant as a personal ‘allowance’; that the applicant and the sponsor live at the same address; and that the applicant has drawn on the money transferred by the sponsor for the purchase of clothes and other personal items. In her declaration the applicant stated that the sponsor has provided her with accommodation and food as a member of the family.

27. The Tribunal accepts, on the evidence provided, that the applicant is dependent on her Australian relative within the meaning of r.1.05A. Specifically, the Tribunal accepts that at the time of application and for a substantial period immediately prior to that time, the applicant was wholly or substantially reliant on the sponsor for financial support to meet her basic needs for food, clothing and shelter; and her reliance on the sponsor was greater than any reliance on any other person, or source of support, for financial support to meet her basic needs for food, clothing and shelter. The Tribunal accepts that at the time of this decision, the applicant continues to be so dependent.

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

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

29. 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.

30. As noted, the applicant was born in 1945 and was 71 years old at the time of application and is 74 years old at the time of decision. Paragraph (c) of the definition of ‘aged dependent relative’ is therefore met at the time of application and the time of decision.

31. 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.

32. 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

33. 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.

    Adrienne Millbank
    Member