Van Rooyen (Migration)

[2021] AATA 3406

Van Rooyen (Migration) [2021] AATA 3406 (20 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Emily Alice Elizabeth Van Rooyen

CASE NUMBER:  1827661

HOME AFFAIRS REFERENCE(S):          CLF2017/21600

MEMBER:SM Justin Owen

DATE:20 August 2021

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; and

·cl.838.221 of Schedule 2 to the Regulations.

Statement made on 20 August 2021 at 1:56pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – Aged Dependent Relative – wholly or substantially reliant – substantial period – earlier money transfers – applicant ineligible for South African pension – decision under review remitted         

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.05; Schedule 2 cls 838.111, 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 3 September 2018 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 is a 72-year old widow from the Republic of South Africa. The applicant’s husband died in 2010 and she has never re-partnered.  The applicant’s daughter, Mrs Delia Reincke, has sought to sponsor her mother to come and live out her remaining years with her, her husband, and children in Australia, on an Aged Dependent Relative visa.

3. The applicant applied for the visa on 13 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 to this matter, the primary criteria to be met include cl 838.212.

4. The delegate refused to grant the visa on the basis that cl.838.212 was not met because the delegate was not satisfied that the applicant met the requirements of an Aged Dependent Relative as defined in Regulation 1.03. 

5. 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 telephone.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The applicant appeared before the Tribunal on 19 August 2021 via videoconference to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor Mrs Delia Reincke and the applicant’s son-in-law Mr Barry Reincke.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The visa application was made on the basis that the applicant is the aged dependent relative of Mrs Delia Reincke, 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).

9. In this case Mrs Delia Reincke is an Australian citizen and is the applicant’s daughter.

10. The applicant does not meet the requirements for the grant of the Remaining Relative visa. 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?

11. 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.

12. 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).

13. The Tribunal is satisfied on the evidence before it that the applicant is the mother of the sponsor, an Australian citizen.  A certified copy of the sponsor’s Certificate of Australian Citizenship, indicating the sponsor became an Australian citizen on 26 February 2004 (D1, Folio. 81) is before the Tribunal.  The Tribunal has before it a certified copy of the sponsor’s South African birth certificate listing the applicant as her mother (D1, Folio. 84).   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 applicant was married to Mr Ronald Anthony Van Rooyen on 8 December 1967 in Durban, Natal Province, the Republic of South Africa.  Certified copies of South African Marriage Certificates were provided to the delegate confirming this (D1, Folios.94 and 96).  The applicant’s husband died on 29 April 2010.  The applicant provided the delegate with a copy of her husband’s Death Certificate  (D1, Folio.89) and a copy of the handwritten Notification/Register of Death provided to the South African Department of Home Affairs on 30 April 2010.  The applicant has not remarried.  The applicant has provided evidence that she has remained single since she was widowed 11 years ago. The Tribunal accepts the applicant’s statement.   

15. For these reasons subparagraph (a) 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?

16. 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.

17. The applicant was 68 years of age at the time of application and is 72 years of age at the time of decision.  An aged dependent is defined as someone who is old enough to be granted an aged pension under the Social Security Act 1991. 

18. For these reasons subparagraph (c) of the definition of ‘aged dependent relative’ is met by the applicant 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 reg 1.05A: Huynh v MIMIA (2006) 152 FCR 576 at [43].

21. The Tribunal notes that the applicant has spent a significant time residing with her daughter, who is the sponsor of her visa application, and her grandchildren.  The applicant has lived with the sponsor at her Sydney family home continually since 2017.   The applicant visited Australia some 13 times prior to this time on visitor visas for periods of between three months and up to a year.  On the evidence before it the applicant arrived in Australia again on 19 February 2017 and lodged her Aged Dependent Relative visa application the following month in March 2017.

22. At the time of application, the applicant declared that she had been dependent on her daughter, the sponsor for 3 years and 7 months.  The applicant provided the delegate with a range of documentation that the Tribunal has considered including:

    ·Her own extensive bank statements for the period January 2013 to February 2017

    ·Her bestMed private health insurance membership certificate dated 3 February 2018 stating she pays R3,312 per month in contributions (D1. Folio177-178). 

    ·Her Galaxy income statement of 2016 and Old Mutual Wealth income statement of 2017

    ·A statement from the South African Social Security Agency dated 17 April 2009 refusing the applicant after an enquiry of a beneficiary for failing to meet the means test (D1, Folio. 175)

    ·A statement from the applicant’s then landlord Ms Marika Meneghlin stating the applicant was paying her rental per month of R2,300 rental and R250 water and electricity for her rented residential property (D1, Folio. 173).

23. The applicant has lived with the sponsor and her family in Sydney since her arrival in Australia in February 2017.  She resides with her daughter (the sponsor), her son-in-law and her grandchildren.  There is clearly, on the evidence before the Tribunal, a strong and genuine family bond.  The applicant since the lodgement of her visa in March 2017 has her accommodation provided by the sponsor. The applicant, sponsor and the applicant’s son in law at the Tribunal hearing each spoke of how all the applicant’s needs – including her basic needs for food, clothing and shelter – have been looked after by her daughter the sponsor and her daughter’s husband since arriving in Australia in February 2017.  The applicant states she has her own bedroom and bathroom at her daughter’s home. The Tribunal accepts the applicant’s needs for food and clothing are predominantly the responsibility of her daughter and her family, with food being purchased, quite understandably, for the family collectively by the sponsor together with her husband.  The applicant’s needs for clothing are predominantly looked after by the sponsor and her husband.  The applicant’s need for shelter is wholly met by the sponsor and her husband through their home which they share with the applicant and their children.  At the hearing it was submitted that the applicant’s small investment pension is today used to maintain her private health insurance fund that continues to be domiciled in the Republic of South Africa.  The Tribunal is satisfied that at the time of decision, the applicant is wholly or substantially reliant on their relative, her daughter the sponsor, for financial support to meet her basic needs for food, clothing and shelter; and the applicant’s reliance on their relative is greater than their reliance on any other person or source of support.

24. To meet the requirements of the visa under reg 1.05A(1)  the applicant must also have been wholly or substantially reliant on their relative, her daughter the sponsor, for financial support to meet her basic needs for food, clothing and shelter; and the applicant’s reliance on their relative is greater than their reliance on any other person or source of support for a “substantial period immediately before that time”.  The Tribunal notes that the delegate interpreted a ‘substantial period’ immediately prior to the applicant’s visa application to be a three-year period (as per Departmental guidelines (PAM3)).  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.’ The Tribunal notes the varying interpretations of ‘substantial period’: 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. Elsewhere in PAM3, Departmental guidelines on r.1.05A state that a substantial period for the purpose of assessing dependency in r.1.05A is a period of 'at least 12 months'. In light of this contradiction, and considering the approach referred to in Huang, above, the Tribunal considers in the present case that 12 months prior to the application is a substantial period that is reasonable in the circumstances.

25. The Tribunal notes that during the period she claims to have been dependent on the applicant prior to arriving in Australia, the applicant was receiving regular monthly payments per month to her Capitec Bank account from the sponsor.  These payments date from at least the start of 2014 and generally are around R3,500 per month, increasing up to amounts on occasion of over R4,500.  Some of the statements say the monies are being deposited for “Food” and “Food and Living” and “Grannys Food Money”.  The Tribunal also notes other payments such as over R10,000 for other expenses such as flights.   The Tribunal is satisfied that the applicant was receiving significant support for her basic needs for food, clothing, and shelter for the twelve months (and indeed beyond this time) leading to the lodgement of her visa application from the sponsor. 

26. The Tribunal accepts that the applicant, on the basis of the statement submitted from the South African Social Security Agency, was ineligible for any pension from the South African Government during the 2014 to 2017 period.   

27. The Tribunal notes the evidence before the it pertaining to the variable investment pension the applicant has been receiving during this period.  The applicant inherited the pension from her late husband after his passing in 2010.  This pension the applicant received between 2014 and 2017 varied between R4,900 and R5,100 per month.  In 2018 the applicant stated in her submissions to the delegate that this pension was due to expire in a few years’ time. 

28. In her submissions to the delegate in 2018, the applicant claimed her expenses per month consisted of rent of R2,300; utilities of R250; medical bills/insurance of R3,312; medication of R105; medical visits outside of those covered by her insurance of R200; transport to the doctors (the applicant does not drive) of R180; food of R3,000; transport to the shops of R120; and clothes of R800-1,000.  These costs amount to around R10,400 per month. 

29. The evidence therefore suggests that in the 12 months period prior to the applicant lodging her visa application, the applicant was paying for her monthly expenses of approximately R10,400 via a combination of her small investment pension (R4,900-R5,100 per month); monies received from her daughter the sponsor (ranging up to R4,500 per month) and sundry other minor income. 

30. The Tribunal notes however that for the applicant to be dependent upon her daughter, the Australian relative, within the meaning of r.1.05A she must be at the relevant time and for a substantial period immediately prior to that time, wholly or substantially reliant upon her daughter for financial support to meet her basic needs for food, clothing and shelter (r.1.05A(1)(a)(i)); and her reliance on her daughter must be 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 (r.1.05A(1)(a)(ii)). 

31. The applicant’s basic needs for food, clothing and shelter at this time have been estimated approximately as R2,300 for rent; R250 for utilities like water and electricity; R3,000 for food and R1,000 for clothing: amounting to some R6,550 per month.   

32. The applicant claims that her small investment pension of R4,900 to R5,100 was utilised principally to pay her rent and her private health insurance.  The applicant states that the Republic of South Africa does not have a Medicare-style universal health care system.  The applicant, living alone, faced a range of health conditions already outlined, meaning that maintenance of private health insurance was vital to her well-being.  The Tribunal accepts that the applicant was paying her rent and utilities of R2,550 whilst the remaining R2,350 to R2,550 of her monthly investment pension was going towards paying the bulk of her medical insurance which in full was approximately R3,312.  The Tribunal notes the applicant’s bank records that illustrate monthly private health insurance premiums were deducted from her account each month as she has claimed, including the quantum of her claim.  The Tribunal is satisfied that the applicant’s monthly investment pension covered the rent of R2,300, the utilities of R250 and part of the applicant’s private health insurance. The Tribunal notes that the entire cost of rent was in an earlier period paid by the sponsor from her own account before the applicant changed the payments to a combination of direct debit and cash.

33. The applicant’s monthly living costs after the bulk of her medical insurance and her rent and utilities are deducted (having been paid by her investment pension) was therefore approximately R5,300 to R5,500 and overwhelmingly on the evidence paid for by the sponsor.  These costs are made up of food (R3,000);  clothing (R1,000); the remainder of her medical insurance (R750-950); medication (R105); medical visits outside of those covered by her insurance (R200); transport to the doctors (R180); and transport to shopping (R120). 

34. The cost of meeting the applicant’s basic needs for food, clothing and shelter was approximately R6,350 to R6,550 per month. The evidence before the Tribunal suggests that the applicant was covering about R2,550 of these expenses – namely the rent and utilities – through her small investment pension, whilst the bulk of the applicant’s costs for her basic needs - R3,800 to R4,000 - was being financed by regular payments being made by the sponsor to the applicant (ie 2 February 2017 R4,239.28; 17 January 2017 R2755.69; 8 December 2016 R3281.40; 9 November 2016 R3,271.27; 4 October 2016 R3,144.47; 30 August 2016 R3,480.76; 27 July 2016 R3,425.85; 29 June 2016 R3,195.92; 25 May 2016 R4,232.72; 15 April 2016 R4,234.72’ 9 February 2016 R4,018.85 etc). There is evidence of what are generally monthly repayments by the sponsor to the applicant for some years prior to the lodgement of the applicant’s visa application. The Tribunal is satisfied that the sponsor was providing up to and over R4,000 per month to meet the applicant’s basic needs for food, clothing, and shelter in the 12 months leading to the lodgement of the visa application. The applicant was providing R2,550 to meet her own basic needs for food, clothing, and shelter.

35. On the basis of this evidence, the Tribunal is satisfied that for a substantial period immediately prior to the applicant’s visa application the applicant was substantially reliant upon her daughter for financial support to meet her basic needs for food, clothing and shelter (r.1.05A(1)(a)(i)).  The Tribunal is satisfied that the sponsor’s regular monthly contributions to her mother ensured the applicant was able to meet her basic needs for food, clothing, and shelter.

1. The Tribunal is also satisfied that the applicant’s reliance on her daughter 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 (r.1.05A(1)(a)(ii)) during the 12 months prior to the lodgement of her visa application.  The Tribunal makes this finding based upon the evidence that the sponsor was providing up to R4,240 per month to the applicant to meet her basic needs for food, clothing and shelter whilst the applicant herself was meeting these needs by the payment of some R2,550 that was spent on rent and utilities.  The Tribunal is satisfied that the applicant was spending the remainder of her monthly investment pension on her private health insurance.  The Tribunal considers the applicant had an urgent need for private health insurance given her significant health needs, her total lack of support, and the lack of any universal health care system in the Republic of South Africa.  She funded this insurance at least partially out of her own investment pension.  The substantial majority of the applicant’s costs to meet her basic needs for food, clothing and shelter between early 2016 and her lodgement of her visa application in March 2017 – some R6,350 to R6,550 per month – was funded by the sponsor’s regular monthly financial contributions made directly to the applicant’s bank account.  The Tribunal recognises the applicant’s bank statements illustrate that the payments are being made for food and living costs on multiple occasions over the years.

2. The Tribunal recognises that the applicant has a further son and daughter residing in the Republic of South Africa.  The Tribunal discussed these individuals with the applicant and sponsor at the hearing.  The applicant has submitted she has had no contact with her son for a period of some twenty years.  The sponsor informed the Tribunal that there had been issues pertaining to violence being committed by her sibling towards the applicant.  The applicant provided the details of her other daughter who resides in the Republic.  The applicant stated she does not receive support from her other daughter and has little ongoing contact with her.  The Tribunal considers the evidence of the applicant, the sponsor and the sponsor’s husband to be genuine, spontaneous, and subsequently reliable.  The Tribunal accepts their testimony that the applicant’s son and other daughter have not provided the applicant with any financial support either at present or at anytime prior to the lodgement of the applicant’s visa application.    

3. For these reasons, the Tribunal has concluded that the evidence does show that the applicant had been substantially reliant on her daughter the sponsor for a substantial period prior to the making of the visa application, and that the applicant has remained similarly dependent and reliant on her daughter the sponsor thereafter and remains so dependent and substantially reliant as at the date of this decision. The Tribunal is satisfied that the applicant is dependent on the sponsor as per r.1.05(1)(a).

4. For completeness, the Tribunal notes r.1.05A(1)(b) where an applicant can also be found to mete the definition of a “dependent” if they are wholly or substantially reliant on the other person for financial support because they are incapacitated for work due to the total loss of their bodily or mental functions.  The Tribunal has noted the applicant’s submissions that she has never been employed; is over 70 years of age; suffer from arthritis and heart conditions; and have been a “domestic housewife” their whole life.  She stated at the hearing she also suffers from hearing loss.  The Tribunal accepts the huge challenges the applicant would face in attempting to obtain employment in the Republic of South Africa at this stage of her life, including the challenges from government employment policies.  Given however the Tribunal has already found the applicant is dependent on the applicant as per r.1.05A(1)(a), the Tribunal is not required to make a finding as to r.1.05A(1)(b). 

5. For the reasons above, subparagraph (b) of the definition of ‘aged dependent relative’ at r.1.03 is met at the time of application and the time of decision.

6. The Tribunal is satisfied that the applicant meets the definition of an ‘aged dependent relative’ at r.1.03. 

7. 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.

8. 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

9. 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 Regulation; and

   · cl.838.221 of Schedule 2 to the Regulations.

   Justin Owen
   Senior Member