Zdybicka (Migration) - [2021] AATA 4060

Zdybicka (Migration) [2021] AATA 4060 (7 October 2021)
Corrigendum
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Daniela Zdybicka
CASE NUMBER:  1906057
HOME AFFAIRS REFERENCE(S):          CLF2017/104622
MEMBER:Brendan Darcy
DATE OF DECISION:  7 October 2021
DATE CORRIGENDUM
SIGNED:18 October 2021
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

In paragraph 28 reference to the applicant’s daughter should be to the sponsor’s daughter

Brendan Darcy
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Daniela Zdybicka
CASE NUMBER:  1906057
HOME AFFAIRS REFERENCE(S):          CLF2017/104622
MEMBER:Brendan Darcy
DATE:7 October 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 the Schedule 2 to the Regulations.

Statement made on 7 October 2021 at 12:25pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – definition of ‘aged dependent relative’ is met – applicant is not able to work – applicant was not meaningfully living independently during the relevant period – applicant has been for a substantial period wholly reliant on the sponsor for financial support– decision under review remitted

LEGISLATION
Migration Act 1958, ss 65
Migration Regulations 1994, rr 1.03, 1.05, Schedule 2, cls 838.212, 838.221
Social Security Act 1991

CASES
Cole v MIBP [2018] FCAFC 66
Huang v MIMIA [2007] FMCA 720
Huynh v MIMIA (2006) 152 FCR 576

statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 February 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).
The applicant applied for the visa on 31 October 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.
The delegate refused to grant the visa on the basis that cl 838.212 was not met as the applicant did not meet the definition of aged dependent relative because the applicant failed to satisfy reg 1.05A(1).
Via an internet enabled audio-visual platform, the review applicant (the applicant) appeared before the Tribunal on 10 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor of the applicant’s visa application, who was also present. The Tribunal hearing was conducted with the assistance of an interpreter in the Polish and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Consideration of claims and evidence
The visa application was made on the basis that the applicant, Ms Daniela Zdybicka, is the aged dependent relative of Ms Marta Kaczmarek, 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).
The applicant was born in 11 May 1943 in Poland and is a Polish national.
In this case, Ms Marta Kaczmarek, born on 24 April 1953, has Australian citizenship which she obtained on 4 March 1986 and claims to be the applicant’s biological sister. (The applicant claims that while she has two other siblings, one has passed away and the other’s whereabouts are unknown.)
Background
The applicant was granted a visitor visa on a Subclass 600 visitor visa on 8 July 2017 and then arrived in Australia 6 October 2017. The visa remained valid for three months from the date of arrival.
An application for a permanent Class BC Subclass 838 Dependent Relative visa was lodged on 31 October 2017. At the time of lodgement, the applicant was aged 74 years.
Attached to the application was a copy of the applicant’s divorce certificate indicating that her marriage had been entered into in 1970 and dissolved in 1977.
In Part K of the Form 47OF, the applicant declared that she had been dependent on the sponsor for 17 years and two months. The applicant further described her circumstances as being divorced with no children and the sponsor to be her only family member who is an Australian citizen, Australian permanent resident or New Zealand citizen whose usual country of residence is Australia.
The only evidence at the time of application that the applicant received money transfers from the sponsor were copies of confirmed payments through World First Pty Ltd indicating transfers of money from the sponsor to the applicant’s account in Poland’s Bank Pekao SA.
On 14 August 2018, the Department requested the applicant to provide specific examples of evidence of financial dependency, as well as a questionnaire for the applicant to complete.
On 10 September 2018, the applicant provided a response to the questionnaire, which included:
·The applicant leased an apartment in Krakow, Poland which she later bought with the assistance of her sister, prior to coming to Australia. The apartment is currently vacant pending the result of this visa application;
·The applicant had worked as a library technician, editor and lecturer for 14-and-a-half years, but is currently unemployed;
·The applicant had no source of income e.g. state pension or retirement savings, from any organisation in her country of origin or the Australian government;
·The applicant has resided with her sister at her Sunshine West residence in the State of Victoria; and
·The applicant also claimed her sister provided food, clothing and shelter with costs amounting to approximately 150 Australian dollars per week.
Medical information indicates that the applicant suffered an ischemic stroke in 2019. A February 2021 letter from Dr Choi indicates that the applicant had severe cardiomyopathy with severe LV dysfunction and was an ex-smoker.
According to the decision record, the delegate was not satisfied the applicant met regs 1.05A(1)(a) and (b), and proceeded to refuse to grant the visa on 27 February 2019.
The applicant validly applied to have the delegate’s refusal decision reviewed by the Tribunal on 14 March 2019 with the decision record attached.
According to the decision record, no supporting evidence to support any of the claims made by the applicant in regard to her financial dependency on the sponsor was submitted. She did not provide any evidence about the ownership of the property in Poland or whether she has any assets or evidence of financial dependency over the assessable period (three years prior to the application). The delegate mentions in the decision record that the applicant had not provided an estimate of her costs in Poland or a full account of her income or assets.
In the decision record the delegate further stated that there was no suggestion the applicant was wholly or substantially dependent on the sponsor because she is incapacitated for work due to total or partial loss of her bodily or mental functions. The Tribunal notes that no medical assessment was requested by the delegate.
On 27 July 2021, the applicant submitted a translation of a letter from Poland’s Social Insurance Institution indicating the applicant’s 18 September 2017 application for a contributory retirement allowance was refused. The letter was dated 4 October 2017.
A signed statutory declaration was submitted dated 1 September 2021 by Dr Windsor Choi indicating the applicant and the sponsor are his patients.
A statutory declaration signed by the sponsor dated 2 September 2021 was also submitted indicating that she has been supporting the applicant between 1991 and 2017 by sending money via various bank accounts and money orders; that when the sponsor arrived in Krakow in 2017 she found the applicant’s bank account was lost; and the sponsor organised an eye operation in the Czech Republic in 2017; that she has been paying for the applicant’s visa application costs, health insurance, food, pharmaceuticals and other necessities.
A letter from the sponsor’s daughter indicates she opened a bank account in Poland in 2000 in the daughter’s name as a more convenient way for her mother (the sponsor) to send money to the applicant.
The applicant submitted a signed statutory declaration dated 7 September 2021, which states:
·For a period of 27 years from 1990 to 2017, the applicant’s sister was sending money from Australia and has spent money in renovations of the applicant’s apartment three times in 1990, 2006 and 2017;
·Since 2020, the applicant has been receiving about 600 Polish zloty per month to her bank account and she received a bank card which allowed her to withdraw money from that account to purchase basic food products and pay the rent;
·From 2013 to 2017, the applicant was receiving an allowance from the Municipal Social Welfare Centre in Krakow amounting to about 600 Polish zloty per month;
·The applicant claims not to have any other income in Poland or in Australia;
·As the applicant has worked permanently for less than 15 years and later only casually, the applicant was not entitled to any social security insurance payments; and
·The applicant has been fully supported by her sister since her arrival in Australia and the sponsor looks after her by paying for food, clothes, medications, the Allianz Insurance policy and anything else she might need.
Also submitted on 3 September 2021 were copies of bills and correspondence for utilities, rate payments, health insurance, remittance records, a bill for a 2017 cataract operation in the Czech Republic pertaining to the applicant; and a certificate issued by the Krakow Social Welfare Centre indicating the applicant had been receiving social security payments between January 2013 and November 2017.
As mentioned above, the parties attended a scheduled hearing, at the end of which the applicants were asked to provide additional documentation with certified translations and to do so by 30 September 2021.
On 19 September 2021, the parties submitted the following documents:
·Bank account details from a Polish based bank, Bank Pekao SA (with translations) indicating the applicant and the applicant’s daughter withdrew specific amounts between 2014 and 2017; and
·A translated notarised agreement dated September 2017 indicating a separate title for an apartment in a residential cooperative in Krakow was issued in the name of the applicant.
There are non-disclosure certificates issued attached to the applciant’s Departmental file.
Is the applicant an aged dependent relative of an Australian relative?
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.
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).
In this case, the applicant is the ‘relative’ of an Australian relative for the purposes of cls 838.212 and 838.221.
Does the applicant have a spouse or de facto partner?
The documentary and other evidence before the Tribunal is that the applicant was married in 1970 in Poland, and then divorced in 1977; that the applicant neither remarried nor lived in a de facto relationship since her divorce; and that she never had any children, biological or otherwise, at any stage. The Tribunal accepts that the applicant did not have any spouse or de facto partner at the time of application or at the time of making its decision.
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 dependent on the Australian relative?
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).
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].
During the hearing, the Tribunal indicated that the three years prior to the application being lodged with the Department in October 2017 would satisfy the ‘substantial period’.
When the Tribunal examined the totality of the evidence of support for the applicant, bank statements and other evidence it strongly indicated that the sponsor has contributed to the material wellbeing of the applicant during the last three years she resided in Krakow.
The applicant was receiving a modest allowance from Krakow’s Municipal Social Welfare Fund (about 600 Polish zloty or about the equivalent 210 Australian dollars). Asked as to the reasons the applicant did not receive a contributory pension (worth about 1000–1200 Polish zloty per month for her years in work, the parties explained that the applicant did not work the requisite years in full-time employment as the applicant, a former linguistic academic, undertook freelance work from the 1980s. The available country information indicates that the contributory pension scheme required 12 years of full-time work. The document evidence to support her ineligibility is supported by the submitted letter from Poland’s Social Insurance Institution indicating the applicant’s 18 September 2017 application for a contributory retirement allowance was refused. As for the basic pension, the parties claimed that it was not available to the applicant due to the underdevelopment of the pension system in Poland towards ‘non-contributory’ persons during their working aged years. However, the available country information to the Tribunal is that a basic pension with a minimum value of 1,000 zloty is available to the applicant. The Tribunal has some reasonable suspicions that the parties have withheld the full extent to which the applicant may have been receiving a basic Polish pension. Nonetheless the Tribunal has provided the parties with the benefit of its doubts and accepts the applicant has received a modest allowance of 600 Polish zloty on a monthly basis.
The issue for the Tribunal is whether the sponsor’s financial contribution was sufficient to satisfy both regs 1.05A(1)(a)(i) and (ii). The Tribunal notes the parties provided a written statement to the Department stating the sponsor provided 600 Polish zloty to the applicant in the relevant period prior to the application and relied on this as evidence that the applicant did not satisfy the relevant regulations.
Since then, the parties submitted bank account statements from a Polish bank for the relevant period. They explained that it was a joint account established in the name of the applicant and the sponsor’s daughter. It was explained that the joint account had the dual purpose of providing remittances for the applicant from the sponsor or for the sponsor’s daughter to make deposits and utilise when in Europe. Both account holders had access to the account via a bank debit card, as well as at a branch. Prior to the hearing, the bank account demonstrates the deposits made by both the sponsor and the sponsor’s daughter. At the scheduled hearing, the Tribunal explained the deposits do not sufficiently indicate that the applicant had been accessing the account on a regular basis for the purposes of this review and that the amount was about 600 Polish zloty per month. In the post hearing submission, the parties accessed the same bank accounts to demonstrate withdrawals during the relevant period. Of particular interest arising from this submission was the approximately quarterly cash withdrawals of 1300 to 1550 Polish zloty (or about 450–540 Australian dollars) by the applicant in Poland between 2014 and the date of the account closing in April 2017. The last withdrawal was around 5100 zloty (or about 1800 Australian dollars). The money, it was claimed, was specifically for the applicant’s food, clothing and health needs. This information indicated to the Tribunal that the sponsor was not providing the equivalent of 600 Polish zloty on a monthly basis and that the amount was slightly less than the amount provided by Krakow’s municipal welfare fund.
Of further interest is the provision of shelter for the applicant in the relevant period leading up to the lodgement of this visa application and the relevant documentary evidence. According to the parties, the apartment had belonged to a state-run housing cooperative and the sponsor provided the money to buy the apartment when the applicant was eligible to do so. They further explained that the apartment had not been rented out since its purchase. The sponsor also provided photographic evidence and specific invoices relating to the renovation of the apartment. This evidence indicates that the applicant’s shelter was wholly and substantially provided by the Polish authorities and the applicant’s pension for rent.
Given the substantial amount of financial assistance received by the applicant from a source other than the applicant, the Tribunal finds there is insufficient evidence that the applicant was for a substantial period immediately prior to lodgement of this visa application, substantially and wholly reliant on the sponsor for financial support to meet her basic needs for food, clothing and shelter; or that the reliance on the sponsor was 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.
The Tribunal notes that Part (1)(a)(i) and Part (1)(a)(ii) of reg 1.05A direct a decision maker to consider the financial support to meet the basic needs for shelter, food and clothing. To this extent, the Tribunal has not included the contribution of the sponsor to the applicant’s health care needs in making this specific finding.
The Tribunal is therefore not satisfied by regs 1.05A(1)(a)(i) and (ii) at the time of this visa being lodged.
As the Tribunal is not satisfied that reg 1.05A(1)(a) is satisfied at the time of application, it is required to consider reg 1.05A(1)(b) for the purposes of 838.212.

Regulation 1.05A(1)(b) states that a person may be considered dependent on another person if they are financially reliant on that person because they are incapacitated for work due to the total or partial loss of their bodily or mental functions. Importantly, it would be insufficient merely for the applicant to have a disability; rather they must be incapacitated for work as a result of the total or partial loss of the person’s bodily or mental functions.[1]
[1] Policy – Migration Act – Act-defined terms instructions – s5G – s5G-Relationships and family members - Dependent family members at [46.4], reissue date 14 December 2016.
The term ‘incapacitated for work’ is not defined in the Act or Regulations, however it was considered in Cole v MIBP[2] in the context of reg 1.03(b)(ii), which states that a child may be considered a dependent child if they are incapacitated for work due to the total or partial loss of their bodily or mental functions. The Full Federal Court in Cole held that the word ‘incapacitated’, whether for work or otherwise, does not mean totally incapacitated, and is capable of including substantially incapacitated.[3] The Court said:
…we consider that “incapacitated for work” does not mean exclusively wholly incapacitated, but may extend to substantially incapacitated for work. It would not be appropriate to extend it to trivially or only minimally incapacitated for work because there would not be significant impairment of income earning ability.[4]
[2] [2018] FCAFC 66.
[3] Cole v MIBP [2018] FCAFC 66 at [24]. This decision overturned the decision of the lower court in Cole v MIBP [2017] FCCA 2234, which had held that ‘incapacitated’ means totally incapacitated for work.
[4] Cole v MIBP [2018] FCAFC 66 at [26].
The Court in Cole also held that ‘work’ could only mean ‘paid’ work; otherwise the regulation would preclude a person who was so incapacitated they could only perform a few hours of voluntary work per week, and would be at odds with the regulatory regime regarding ‘dependency’, which is focussed on a person’s need for financial support. [5]
[5] Cole v MIBP [2018] FCAFC 66 at [25].
Cole is also authority that the two stage process for assessing incapacity for work, as laid down in Re Panke and Director-General of Social Security,[6] and approved in Annas v Director-General of Social Security[7] should be adopted. The Court said:
…the decision‑maker should, first, plainly identify what the disabilities of the relevant person are and, in light of that finding (based on medical and related evidence), determine whether there is paid work that the person, with such disabilities, has the capacity to perform.[8]
[6] Re Panke and Director-General of Social Security (1981) 4 ALD 179.
[7] Annas v Director-General of Social Security (1985) 8 FCR 49.
[8] Cole v MIBP [2018] FCAFC 66 at [67].
However, the Court also found that it would not necessarily be an error if a decision maker does not adopt the two-stage process, where the findings of capacity, based on evidence before the decision‑maker, are obvious.[9]
[9] Cole v MIBP [2018] FCAFC 66 at [69].
In this regard, the Tribunal has considered the living conditions of the applicant prior to the time of application. The sponsor has provided pictures of the applicant’s residence in Krakow prior to its late 2017 renovation. As discussed in the hearing, the photographic evidence indicated that the applicant was struggling with independent living in a hygienic or nutritional manner, probably complicated by neglect by the relevant housing co-operative. There is also evidence that the applicant was vision impaired for many years prior to her 2017 cataract operation.
Moreover, the applicant has not been in the labour market for some time and she was clearly aged and frail during the relevant period. The medical evidence provided by the applicant indicates she has been living with severe heart disease (severe cardiomyopathy with severe LV dysfunction, persistent atrial fibrillation on anticoagulation) for many years. It also indicates that she is an ex-smoker who quit only in or around 2016. The applicant also suffered an ischemic stroke in 2019, which invited the Tribunal to consider that the applicant may have earlier but undiagnosed events while in Poland during the relevant period
It was also discussed in the hearing, that the applicant lost bank account details and that her short-term memory has been affected for many years, although her recall of details pertaining to history and literature had clarity. This indicated to the Tribunal a loss of mental capacity, perhaps due to dementia or a stroke or both during the relevant period prior to the lodgement of the visa.
Taking all the totality of the relevant evidence into account, the Tribunal assess that the applicant is a person who is not able to work, as distinct from someone who chooses not work. The applicant, while not disabled in the sense of lacking mobility, was aged and frail with severe health disease and other ailments during the relevant period. Her fragility prevented her from gaining full or sufficient employment. The overall evidence indicates she was not meaningfully living independently during the relevant period and would have suffered significantly without the substantial support of the sponsor.
Given the passage of time, it would not be appropriate to invite the applicant to undertake a medical examination to determine whether reg 1.05A(1)(b) was to be satisfied retrospectively. The appropriate time for that was prior to the delegate’s decision.
The Tribunal notes that Part (1)(b) of reg 1.05A does not limit a decision maker to consider the financial support to assessing just the basic needs of the applicant for shelter, food and clothing, as it does under Part (1)(a).
Given the sponsor was providing the applicant with not insubstantial financial assistance, including health care during the relevant period, the Tribunal is satisfied that the applicant was substantially, but not wholly, reliant on the sponsor because the applicant was incapacitated for work due to the total or partial loss of their bodily or mental functions.
For these reasons subparagraph (b) of the definition of ‘aged dependent relative’ is met at the time of application.
For the reason outlined above, the Tribunal is satisfied that the applicant meets the definition of ‘aged dependent relative’ pursuant to reg 1.05A(1) for the purposes of cl 838.212.
Since the application has been lodged in Australia in late 2017, a substantial period of about four years has passed. The Tribunal assesses this is the relevant period in considering the definition of ‘aged dependent relative’ at the time of decision.
During this relevant period, the evidence is that the applicant has continually resided in the sponsor’s house in Sunshine West; that there is no evidence the applicant receives any benefits or allowances from the Polish state; and that she received financial support solely from the sponsor. The Tribunal is therefore satisfied that she is and has been for a substantial period before the time of decision wholly reliant on the sponsor for financial support to meet her basic needs for food, clothing and shelter; and that her reliance on the sponsor is greater than it is on any other persons or source of support, as required by regs 1.05A(1)(a)(i) and (ii).
The Tribunal is not required to consider reg 1.05A(b), as the definition of ‘dependency’ under reg 1.05A(1)(a) is met.
The Tribunal nonetheless notes its abovementioned findings that it satisfied Part (1)(b) of the definition of ‘aged dependent relative’ at the time of application. Since then the applicant has reached the age of 78. Her health and frailty have correspondingly and unsurprisingly deteriorated. It follows from this, that subparagraph (b) of the definition of ‘aged dependent relative’ is met at the time of making this decision.
The Tribunal accordingly is satisfied that the applicant meets the definition of ‘aged dependent relative’ pursuant to reg 1.05A(1) for the purposes of cl 838.221.
Is the applicant old enough to be granted an age pension?
To meet Part (c) of the definition for ‘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.
The applicant was aged 74 years of age at the time application. The age requirements for a woman born in 1943 to be granted an Australian age pension payment under the Social Security Act 1991 (Cth) is 65 years. The applicant therefore is old enough to be granted an age pension and continued to be old enough.
For these reasons subparagraph (c) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.
As subparagraphs (a), (b) and (c) of the definition of ‘aged dependent relative’ are met at the time of application, the applicant meets cl 838.212.
Evidence before the Tribunal is that the applicant continues to satisfy the definition of ‘aged dependent relative’ at the time of decision and therefore meets cl 838.221.
Conclusion
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.
Therefore, 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
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 the Schedule 2 to the Regulations.
Brendan Darcy
Member