Victor (Migration)

[2021] AATA 3771

Victor (Migration) [2021] AATA 3771 (29 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sarala Victor

CASE NUMBER:  1901435

HOME AFFAIRS REFERENCE(S):          CLF2017/61109

MEMBER:M. Edgoose

DATE:29 September 2021

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 of Schedule 2 to the Regulations; and

·cl 838.221 of Schedule 2 to the Regulations.

Statement made on 29 September 2021 at 10:32am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – dependency – four other children in home country unable to provide support – evidence and submissions provided about review applicant’s financial support – reliance on review applicant more than any other person – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A(1)(a), Schedule 2, cls 838.111, 838.212, 838.221
Social Security Act 1991 (Cth)

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 10 January 2019 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 29 August 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.

3. The delegate refused to grant the visa on the basis that cl 838.212 was not met.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The visa application was made on the basis that the applicant is the aged dependent relative of Ms Manjula Prema Kumari Victor, 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).

6. In this case Ms Manjula Prema Kumari Victor is an Australian citizen and is the applicant’s daughter.

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

7. 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.

8. 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).

9. In this case, the applicant is the ‘relative’ of an Australian relative for the purposes of cl 838.212. The paragraphs below address all aspects of the aged dependent relative definition. If the applicant does not meet one aspect of this definition, it is not necessary to consider the remaining aspects. If affirming the decision under review, delete the paragraphs that are not relevant.

   Does the applicant have a spouse or de facto partner?

10. The applicant informed the Department that she had been married and that her husband had died on 22 December 2006. For these reasons subparagraph (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?

11. 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).

12. 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].

13. The applicant arrived in Australia on 3 August 2017 on a Subclass FA-600 visa. This visa ceased on 3 November 2017. While onshore the applicant lodged an application for an 838 Aged Dependent Relative visa on 29 August 2017. This application was refused on 10 January 2019 and is the subject of this review.

14. The delegate notes that at time of the visa lodgement on 29 August 2017 the visa applicant claimed that she had been dependent on the review applicant for 10 year and 8 months. The visa applicant further claimed that she has no source of income or assets under her name in India and that she is not in receipt of a pension or allowance. The visa applicant’s only financial support is from her the review applicant and son in-law in Australia. Although the visa applicant has four children living back in India the visa applicant claimed that they are not in a financial position to support her daily living expenses as they themselves are deemed as poor. The concern for the delegate was the lack of evidence submitted to support the visa applicant’s claim that she is reliant on the review applicant for financial support to meet their basic needs for food, clothing and shelter.

15. The Tribunal has given care consideration to the submission made on 4 November 2020 that provided evidence of financial support by the review applicant for the visa applicant. The Tribunal also notes that over the past 13 years the review applicant has spent over 8 years in Australia living with review applicant. The submission outline some of the financial support provided dating back to January 2010 up until January 2017. Since 2 August 2017 when the visa applicant last arrived in Australia she has been living with and dependant on the review applicant.  The Tribunal is satisfied the visa applicant has been wholly or substantially reliant on the review applicant for financial support to meet her basic needs for food, clothing and shelter and continues to be at time of this decision. Therefore, the Tribunal is satisfied the review applicant meets reg 1.05A(1)(a)(i).

16. The Tribunal considers that the visa applicant’s reliance on the review applicant is greater than any reliance on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter. Therefore, the Tribunal is satisfied the review applicant meets reg 1.05A(1)(a)(ii).

17. 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?

18. 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.

19. Given that the applicant was over 69 years of age at time of lodging the visa and is over 74 years of age at time of this decision the Tribunal is satisfied the applicant is old enough to be granted an age pension under the Social Security Act 1991 (Cth).  For these reasons subparagraph (c) of the definition of ‘aged dependent relative’ is met at the time of application and at the time of decision.

20. 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 at the time of decision for the purposes of cl 838.212 and cl 838.221.

21. 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

22. 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.

    M. Edgoose
    Member