Van der Zanden (Migration)

[2022] AATA 536

Van der Zanden (Migration) [2022] AATA 536 (22 February 2022)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Theodorus Johannes Maria Van der Zanden

CASE NUMBER:  2013094

HOME AFFAIRS REFERENCE(S):          CLF2018/355236

MEMBER:SM Justin Owen

DATE:22 February 2022

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 22 February 2022 at 9:56am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – aged dependent relative of an Australian relative – substantial period of dependency – separation from previous partners – no entitlement to welfare in the Netherlands – visa applicant’s personal budget record – caravan situated in the sponsor’s yard – decision under review remitted      

LEGISLATION

Migration Act 1958, s 65
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
Vo v Minister for Home Affairs [2019] FCAFC 108   

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 4 August 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).

2. The applicant applied for the visa on 4 October 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.

3. The delegate refused to grant the visa on the basis that cl 838.212 was not met because the delegate was not satisfied in the three-year period prior to his application that the applicant was wholly or substantially reliant on his son the sponsor to meet his basic needs for food, clothing and shelter.  

4. The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant appeared before the Tribunal on 10 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son and sponsor, Mr Bo Van der Zanden.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant at the time of decision is a 76-year old Dutch national.  The visa application was made on the basis that the applicant is the aged dependent relative of Mr Bo Van der Zanden, 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 Bo Van der Zanden is an Australian permanent resident and is the applicant’s son.

9. The applicant does not meet the requirements for the grant of the Remaining Relative visa: he stated he has other children residing in South Africa and The Netherlands.  The applicant does not claim to be a carer and the application was not accompanied by the relevant Carer certificate. The Tribunal finds that the applicant had not made a valid application for a Carer visa.

   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 reg 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 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).

12. The Tribunal notes the applicant has previously provided the delegate with a range of personal information pertaining to the sponsor Mr Bo Van der Zanden including his South African Birth Certificate dated 3 April 1989 that lists the applicant as his father, and the Department’s internal documentation supplied that notes Mr Bo Van der Zanden is an Australian permanent resident.   

13. The Tribunal is satisfied on the evidence before it that the applicant is the father of the sponsor, an Australian permanent resident.  The Tribunal is satisfied that the sponsor is the 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?

14. The Tribunal notes that the delegate was not satisfied that the applicant did not have a spouse or de facto partner, and subsequently did not meet the requirements of reg 1.03(a). 

15. The Tribunal notes the documentation the applicant submitted as to his divorce with Mrs Wendy Ann Van der Zanden in 1973 and Ms Bridget Leigh Van der Zanden in 1984.  The applicant has also provided a statutory declaration dated 29 September 2018 which stated he had been in a de facto relationship with Ms Anne Marie Naude between 1984 and September 2009 when the relationship concluded. 

16. The delegate stated they had not received further information as requested as to the applicant’s current relationship. 

17. The Tribunal discussed this issue at hearing.  The applicant stated that he had in fact supplied a statutory declaration concerning his relationship status as requested in 2020, but somehow this had not been brought to the attention of the delegate.  The applicant post-hearing submitted, at the Tribunal’s request, a copy of his statutory declaration from July 2020 confirming he had not been in any spousal or de facto relationship since his relationship ended with Ms Naude upon his departure from South Africa in September 2009.  In his own oral testimony the applicant stated he had not been involved in any relationships since 2009.  The applicant’s son concurred with the claim.  The Tribunal accepts the information contained in the July 2020 statutory declaration and accepts the applicant neither has a spouse or de facto partner either currently at the time of decision or at the time of application in October 2018.    

18. For these reasons paragraph (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?

19. 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).

20. 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: Huynh v MIMIA (2006) 152 FCR 576 at [43].

21. There is no claim before the Tribunal that the applicant is wholly or substantially reliant on the sponsor for financial support because he is incapacitated for work due to the total or partial loss of his bodily or mental functions (reg 1.05A(1)(b).  At the hearing the applicant discussed that he was in good health.  The applicant’s son provided testimony to that effect.  Accordingly, the applicant must meet reg 1.05A(1)(a). 

22. The Tribunal is mindful that Departmental guidelines (PAM3) interpret a 'reasonable period' in this context as being three years, or a lesser period if otherwise satisfied that the applicant has received ongoing support from the Australian relative. However, the Department’s policy interprets ‘substantial period’ as being a period of ‘at least 12 months’. 

23. 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.’

24. The Tribunal notes the challenges in reconciling these different interpretations, including the finding in Huang v MIMIA that the term ‘substantial period’ in reg1.05A be read down to mean a period not more substantial than a ‘reasonable period’, which the Court noted need not be lengthy.

25. In light of the differing interpretations and contradictions in approach, the Tribunal considers that in the present case, that 12 months prior to the application is a substantial period that is reasonable in the circumstances. 

26. The applicant arrived in Australia in October 2016 and subsequently applied for the visa on 4 October 2018.  At the hearing, the applicant discussed his life with his son and daughter-in-law since his arrival. On 31 October 2016, not long after moving in with his son, the applicant purchased an unrenovated caravan for $2,240 that he commenced restoring.  The applicant and sponsor each explained that the residence was very small with the sponsor, his wife and their children, meaning the applicant was living on the couch.  To solve this problem, the caravan was purchased and located in the backyard of the property as a residence for the applicant.  The Tribunal was able to observe both the property and the caravan at the videoconference hearing and is satisfied that the applicant has both restored and resided in the caravan for a number of years. 

27. The applicant explained his life in Australia with his son and daughter-in-law since his arrival in October 2016.  He claims to have been reliant on the parties to meet his basic needs for food, clothing and shelter since this time.  The applicant stated that his son had not provided him with any support for his basic needs for food, clothing and shelter until his arrival in Australia in October 2016, some two years prior to the lodgement of his visa application. 

28. The arrival of the applicant in Sydney in October 2016 was not originally intended to be the commencement of a permanent stay in Australia.  The applicant stated that his plan, after living in Thailand between 2009 and 2016, was to spend some time with his son in Australia before travelling to The Netherlands where his brother Ron resided.  The applicant stated his intention was to assist his son with renovating the house he had recently purchased.  The applicant subsequently however discovered that he was not entitled to an age pension or any retirement income in The Netherlands due to the fact he had left  the country when very young, and had never actually contributed to the Dutch social security system for at least a year after his 15^th birthday.  The applicant provided correspondence from the Dutch authorities confirming this, which the Tribunal accepts.  The applicant’s lack of financial security in The Netherlands – followed by the death of his brother Ron – meant that his plans changed and his preference became to remain in Australia. The applicant was left with no family, financial support or access to a pension if he returned to The Netherlands, a country the Tribunal notes the applicant last lived in in 1953. 

29. The Tribunal enquired of the applicant as to what financial assets and resources he held since his arrival in Australia in October 2016.  The applicant owned no housing or other major assets.  He had some tools which he sent to his son the sponsor from Thailand.  He stated he had around AUD $6,000 in a bank account that was to support him in The Netherlands as well as he was to subsequently discover a small South African unit trust from several decades ago amounting to around $1,000 in total that went to his son and daughter.  The applicant has no access to any other pensions or superannuation.  The Tribunal found the applicant eloquent, spontaneous and credible in his testimony and has accepted his claims concerning his finances for the purpose of this review. 

30. The Tribunal discussed in some detail the requirement for the applicant to rely upon his son, the sponsor to meet his basic needs for food, clothing and shelter.  The Tribunal noted the evidence that the sponsor and his wife had been funding costs such as the applicant’s private health insurance since his arrival in Australia.  It was explained that such expenditure was not germane to the primary issue before the Tribunal.

31. The applicant submitted his handwritten journal of all his costs for food, clothing and shelter.  The journal lists in extensive detail the applicant’s living costs from November 2016.  The Tribunal enquired as to the purpose of such a journal.  The applicant explained that since his arrival his son and daughter-in-law would provide him with funds so he could purchase his own food and basic needs.  To keep a budget he commenced his journal, stating that it was purely for his own budgeting purposes as his intention at that time was to travel to The Netherlands.  The Tribunal considers the claim is unusual but again, found the applicant to be a credible witness and considers it was quite likely the applicant did prepare a diary for the very reasons stated, not for the primary purpose of an Aged Dependent Relative visa application.  The applicant explained that his food tastes and cooking were very different than that of his son, daughter-in-law and grandchildren, hence it made sense for him to do his own shopping and prepare his own meals.  On balance, the Tribunal has accepted the applicant’s claims as to the purpose of his diary and is prepared to accept the information contained is substantially accurate.  The Tribunal accepts that the applicant’s food and in some cases clothing costs for the two years prior to the lodgement of his visa application, and subsequently, were as recorded.

32. In relation to the funding of these food costs, the applicant and the sponsor said that between 2016 and 2018 there was no record of monies going from the sponsor and his wife to the applicant as the payments were simply cash, and the intention continually was that the applicant was only visiting temporarily, and would travel to The Netherlands.  It was only in early 2018, when there was realisation that the applicant did not have access to a pension or financial assistance in The Netherlands, that a concerted attempt was made to record the various regular payments being made by the sponsor (often through his wife) to the applicant.  The Tribunal notes the records of regular payments to the applicant by the sponsor and his wife since 2018 of around $250 per month.  The Tribunal accepts the evidence of the applicant and sponsor on this issue. 

33. On the evidence before it, the Tribunal accepts that the applicant was dependent for his basic needs for food on the sponsor and the sponsor’s wife from October 2016 – two years before his application was lodged – until the current day. 

34. In relation to clothing, the applicant stated his needs were few.  He stated his few needs were provided by his son, such as shirts his son was finished with.  He recalled the sponsor also purchasing him an overcoat for winter.  The sponsor’s evidence was consistent.  The Tribunal accepts the applicant was dependent on the sponsor and the sponsor’s wife for his basic needs for clothing from October 2016 up until the current day. 

35. In relation to shelter, the applicant lives in the caravan that he purchased in October 2016.  The Tribunal notes however that the caravan is situated in the backyard of the sponsor.  The Tribunal notes the rates and utilities notices provided that illustrate the property belongs to the sponsor. The Tribunal furthermore notes the evidence that the caravan does not have running water or a bathroom.  The applicant still relies on the sponsor’s residence for such necessities of life.  Whilst the applicant certainly purchased the unrenovated caravan, the Tribunal places greater weight on the provision by the sponsor of land for the location of the caravan and the provision of basic items the Tribunal considers are inherent basic needs that flow under shelter: a bathroom, shower, toilet, running water and the like.  The applicant also resided in the sponsor’s property until his renovation work was completed.  If the sponsor was not providing land for his caravan and access to basic needs such as toilets and bathrooms, there is no way the applicant could reside at his existing premises.  The Tribunal is satisfied that on the evidence before it the applicant was dependent on the sponsor for his basic needs for food, clothing and shelter from October 2016 up until the present day.  

36. The Tribunal has considered the applicant’s financial situation between October 2016 and the current day.  The Tribunal notes the applicant had around $6,000 to $7,000 when he departed Thailand.  Some of these funds were utilised on the purchase of the aforementioned caravan.  The Tribunal accepts that the applicant has drawn down on the remaining funds for some costs such as visiting the doctor whilst he has resided with his son and daughter-in-law.  The Tribunal does not consider this fact resiles from the evidence that the applicant has been dependent on his son and daughter in law for his basic needs for food, clothing and shelter. 

37. The Tribunal enquired as to support from other family members, namely his other three children.  The applicant and sponsor explained the limitations they each faced due to their personal circumstances.  The Tribunal notes that the applicant has received limited funds on occasion from his daughter Cassandra but these appear to be the exception to the rule. 

38. The Tribunal discussed the delegate’s concerns with the applicant as to his claims when applying for Visitor visas in 2016 and 2017 that he would be self-funded.  The applicant conceded he had stated he had funds in his bank accounts at the time, namely the funds he subsequently took to Australia and used to purchase the caravan.  The Tribunal draws no adverse inference in relation to his claimed dependency on his son for his basic needs on an ongoing basis.     

39. The Tribunal has considered on all the evidence before it whether the applicant could be considered to have been dependent on the sponsor as required by the Regulations.  The Tribunal notes that, given the applicant purchased his own caravan, it may be arguable that prior to the lodgement of the application, and since that time, the applicant was not dependent on the sponsor for shelter.  The Tribunal recognises that it is presently unclear whether dependence requires substantial reliance on the other person to meet all three basic needs identified in reg 1.05A(a)(i) (food, clothing and shelter) or whether substantial reliance to meet one or two of those needs will suffice. In Vo v Minister for Home Affairs [2019] FCAFC 108 the Court adopted a holistic approach however suggesting that it is the overall position that should be considered. The Tribunal notes that the Court held a ‘meaningful degree’ of financial reliance is required, and found ‘it must be sufficient that without the extent of the support provided by the other person the dependent person would be in a position where their overall basic needs for food, clothing and shelter though aided by others would not be met’: at [17]. Accordingly, the Tribunal accepts that the applicant in the specific circumstances of this case can be found to be substantially reliant on another person even if some part of their needs for shelter is being met by another source: in the applicant’s case in relation to his shelter, himself vis his caravan.

1. The Tribunal has also considered the situation in relation to the funds the applicant brought to Australia, and whether the applicant could have relied on that to meet his basic needs for food, clothing and shelter.  The applicant certainly had funds available to him after his arrival that could have allowed him to meet his basic needs for food, clothing and shelter.  In the Tribunal’s own opinion, it would have been entirely reasonable for him to do so.  The Tribunal however notes Huynh v MIMIA (2006) 152 FCR 576 where the Full Federal Court found that the proper construction of ‘dependent’ under the current definition in reg 1.05A does not carry any implication of the notion of necessity or lack of choice. The question before the Tribunal therefore is, was the applicant wholly or substantially reliant on his sponsor for financial support to meet his basic needs for food, clothing and shelter, not what the applicant could have potentially done. Therefore, subject to the other requirements of the regulation, there is no need to prove more than reliance in fact. On the facts before the Tribunal, the applicant was substantially reliant on his son, the sponsor, for financial support to meet his basic needs for food, clothing and shelter, notwithstanding the funds he brought to Australia and used to purchase himself a caravan. The Tribunal furthermore is satisfied that his reliance on his son the sponsor (and his daughter-in-law through her relationship with his son) was greater than any reliance on any other person, or source of support, for financial support to meet the applicant’s basic needs for food, clothing and shelter.

2. The Tribunal notes that this has been a most unusual case with a somewhat unique applicant with his own idiosyncrasies.  The Tribunal notes the corroborative evidence of some of the support prior to the lodgement of the application is limited.  The Tribunal however has placed considerable weight on the oral testimony of the applicant and his son.  Both it considered to be credible witnesses.  The Tribunal considered their explanations both individually and collectively on matters concerning the applicant’s finances, support provided by the sponsor, and the reliance by the applicant on the sponsor to meet his basic needs for food, clothing and shelter to be reliable.  Whilst the Tribunal considers a period of one year of dependency prior to the lodgement of the application to be a ‘substantial period’ in the circumstances, the Tribunal is satisfied that the applicant was dependent for a period of two years prior to the lodgement of his application, and remains so at the time of decision.      

3. 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?

4. To meet the definition of ‘aged dependent relative’ the applicant must be old enough to be granted an age 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.

5. The applicant was 73 years of age at the time of application and 76 years of age at the time of decision.  For these reasons paragraph (c) of the definition of ‘aged dependent relative’ is met at the time of application and at the time of decision.

6. 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.

7. 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

8. 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