Yu (Migration)

[2023] AATA 2357

Yu (Migration) [2023] AATA 2357 (21 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yueyou Yu

REPRESENTATIVE:  Ms Yuanyuan Jiang (MARN: 1678457)

CASE NUMBER:  1919238

HOME AFFAIRS REFERENCE(S):          CLF2018/51498

MEMBER:Stephen Conwell

DATE:21 July 2023

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 21 July 2023 at 4:26pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – applicant substantially reliant on sponsor for substantial period before application made – financial support while applicant living in home country and with other child in third country – evidence of financial transfers provided – more reliant on sponsor than any other person – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a), 376
Migration Regulations 1994 (Cth), rr 1.03, 1.05A(1)(a), 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 1 July 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 7 June 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 that the applicant had been, for a substantial period immediately before the application was lodged, wholly or substantially reliant on her sponsor for financial support to meet her basic needs for food, clothing and shelter.

4. The review applicant (the sponsor) provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

5. The applicant was represented in relation to the review by her registered migration agent (representative).

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

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

   s.376 certificate

8. The Departmental file contains a certificate pursuant to s.376 of the Act, dated 18 July 2019. The certificate indicates that release of information in folio 95 would be contrary to the public interest because it includes information regarding the applicant’s movement records and disclosure may be a breach of her privacy. By letter of 4 July 2023 the Tribunal invited the applicant and his representative to comment on the validity of the certificate. No response to that invitation or submission pertaining to the certificate has been received by the Tribunal. The Tribunal considers the certificate to be valid however it has determined that the information covered by the certificate is not adverse information impacting on the decision and has placed no weight upon it.

   Background

9. The applicant was born in November 1952 and is a citizen of China.  She has been widowed since July 2014 and has two children – a daughter (who lives in New Zealand with her own family) and a son, her sponsor, residing in Australia with his own family.

10. The  sponsor claims that he had been the principal financial support of his mother even before  the death of her husband (his father) in July 2014.  The applicant has been living in Australia as part of the sponsor’s household since 9 May 2018.  She applied for this visa a few weeks later on 7 June 2018.

11. In the decision record dated 1 July 2019, the delegate describes not  being satisfied that in the three year period under review, the applicant was wholly or substantially dependent on her sponsor to meet her basic needs expenses or that her reliance on her sponsor was greater than any reliance by her on any other person or source of support for financial support to meet her basic needs. Consequently, the delegate was not satisfied that the requirements of regulation 1.05A ( 1)(a) were met by the applicant at time of lodging the application.

12. The applicant’s representative provided the Tribunal with a written submission (undated) with supporting documents to claim that the applicant was fully financially dependent upon her sponsor for a substantial period prior to lodging the application. The written submission states in part:

    ·     the applicant ceased farming activities in 2014 due to the death of her husband and her own advancing age and physical limitations,

    ·     since her husband’s death in July 2014 the applicant has been primarily reliant upon the sponsor to meet all her basic needs such as food, clothing, and shelter whilst in Australia as well as for significant periods during her residence in New Zealand and China;

    ·     the applicant has been living with, and been  financially dependent on, her son since her last entry to Australia in May 2018, as evidenced by statements from the sponsor and his sister (who lives in New Zealand) and by the medical report dated 13 July 2013 issued in respect of the applicant;

    ·     the applicant’s pension income, totalling less than 130RMB per month, proved inadequate to cover her remaining essential needs. Supporting documents include translated records of her social insurance income (pension) from 2016 to 2017. It being noted that this income ceased upon her departure from China;

    ·     the delegate accepted that the applicant has shown evidence of money transfers to her in China from the sponsor (or her sponsor’s wife) totalling $16,700 in the three year period under review. It is submitted that the bank statements show that apart from the sponsor, no other individual has made any monetary transfers to the applicant. In particular her daughter in New Zealand (with whom she spent eight months in the three year period preceding this application) has been unable to financially support the applicant;

    ·     the sponsor’s wife’s (Ms Chen’s) ANZ statement from 3 February 2017 to 14 February 2017, reveals that the applicant transferred a total $5000 into Ms Chen’s account during this period. Whilst the applicant does possess a Westpac bank account in Australia, in fact, the primary user of this bank account is the sponsor, who used the account to receive income derived from his Uber driving activities from 2015 to 2017. The noted transfers were therefore not from the applicant to her daughter-in-law, but from the sponsor to his wife;

    ·     in addition to the social insurance account held at the Agricultural Bank of China, the applicant maintains two bank accounts with the Bank of China. The first account's number ends with xxx 2072, while the second account's number ends with xxx 9079. Supporting documents included bank statements for both accounts for the period from 2014 to 2019, each showing limited transactions.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The visa application was made on the basis that the applicant is the aged dependent relative of Mr Liechao JIANG, the applicant claims is their relative. Relative is also 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).

14. In this case Mr Liechao JIANG is the applicant’s son who was an Australian permanent residence at the time of application.

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

15. 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.

16. 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.

17. The Tribunal is satisfied that the applicant was widowed in July 2014 and does not have a spouse or de facto partner.  Therefore she meets subparagraph (a) of the definition of ‘aged dependent relative’ at the time of application and the time of decision.

    Is the applicant dependent on the Australian relative?

18. 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).

19. 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].

20. The applicant has provided evidence that she resided with her sponsor (her son) and his family in his home since May 2018 and continues to do so.  When she has lived in China (since being widowed) she lived alone on the family farm, though this became increasingly difficult with her advancing age and failing health. She spent time with family in New Zealand in 2015 and 2017 (25 August 2015 to 26 October 2015 and 26 November 2017 to 9 May 2018, staying principally with her daughter  who has her own family of four children and who is therefore unable to offer long-term accommodation or financial support to her. 

21. On the evidence the Tribunal is satisfied that during the relevant period the sponsor has been the principal provider of  accommodation, food and clothing for the applicant.  Although the applicant spent approximately only ten weeks in Australia in the three year period under review, the Tribunal is satisfied that the sponsor was the principal financial provider to meet her basic needs whilst she was offshore during the period under review.

22. Since the applicant has been in Australia, she has resided with her sponsor and his family and been fully financially supported by him for her accommodation, food, clothing and medical expenses.

23. Based on the documentary evidence provided by the applicant, the representative’s written submission as well as the written statements of by the sponsor and his sister, the Tribunal is satisfied that the applicant has been fully financially supported by her sponsor since at least July 2014, that is, for a substantial period prior to the application being lodged, and she has been more reliant on her sponsor (her son) than on any other person or source of support.

24. For these reasons subparagraph (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?

25. 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.  The applicant is currently 70 years old and she is therefore old enough to be granted an age pension under the Social Security Act 1991.  She therefore meets the requirements of subparagraph (c) of the definition of ‘aged dependent relative’ the time of application and the time of decision.

26. 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.

27. 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

28. 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.

    Stephen Conwell
    Member