Zhang (Migration)

[2018] AATA 4017

Zhang (Migration) [2018] AATA 4017 (20 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Yunfang Zhang

CASE NUMBER:  1604877

DIBP REFERENCE(S):  CLF2015/72106

MEMBER:John Billings

DATE:20 August 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 20 August 2018 at 2:52pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa residence – Subclass 838 (Aged Dependent Relative) – definition of aged dependent relative – surplus of pension income over basic needs – transfer of funds – proceeds from deceased estates – medical conditions – sponsor’s mental health – ministerial intervention requested – decision under review affirmed

LEGISLATION
Migration Act 2958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 838.211, 838.212, 838.221

CASES

Fernandez v MIBP [2015] FCA 1265
Fernandez v MIBP [2015] FCCA 1698
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 Immigration on 24 March 2016 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, Ms Zhang, applied for the visa on 13 November 2015. She was sponsored by her daughter, Ms Jenny Fan, who is a 63 year old Australian citizen. At the time Ms Zhang applied, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, Ms Zhang is seeking to satisfy the criteria for the grant of a Subclass 838 visa. This 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 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.838.211 and cl.838.221.

3. The delegate refused to grant the visa on the basis that Ms Zhang did not meet cl.838.212.  The delegate referred to the definition of “aged dependent relative” in r.1.03.  The delegate was satisfied that Ms Zhang is a relative of an Australian relative, Ms Fan; that Ms Zhang does not have a spouse or de facto partner; and that she is old enough to be granted an age pension under the Social Security Act 1991.  But the delegate was not satisfied that Ms Zhang had been dependent on Ms Fan for a reasonable period and remained so dependent.  The delegate referred to a lack of evidence to substantiate the transfer of funds by Ms Fan to Ms Zhang.  The delegate also referred to an apparent surplus of Ms Zhang’s monthly Chinese pension income over her “monthly basic needs expenses”; her entitlement to the property in which she resided; and her savings. 

4. Ms Fan applied for review on 9 April 2016.  She provided a copy of the primary decision to the Tribunal.     

5. Ms Fan appeared before the Tribunal on 14 August 2018 to give evidence and present arguments. Due to her age and infirmity Ms Zhang did not appear before the Tribunal.  The Tribunal received oral evidence from Mr Cao Dao Gong and Ms Wang Xuang, friends of Ms Zhang and Ms Fan.  The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. 

6. Ms Zhang is a 90 year old national of China.  She is widowed.  She has significant health problems: see further below.  She lives with Ms Fan in Melbourne.  Ms Zhang’s husband died in China in 2013.  Ms Zhang has four adult children – Ms Fan and her three brothers, Fan Zhong Liang, Fan Yu Liang, and Fan An Liang.  They are aged in their sixties.  They live in Shanghai. Ms Zhang and her late husband travelled to Australia before 2014.  On 14 September 2014 Ms Zhang arrived in Australia holding a Class FA Subclass 600 Visitor visa valid for one year.  Ms Zhang was treated in hospital for pneumonia in 2015.  On 1 October 2015 Ms Zhang was granted a Bridging E visa and on 11 November 2015 she was granted a waiver of condition 8503 (no further stay).  Ms Zhang has remained in Australia since September 2014. 

7. Ms Fan is a major in the Salvation Army.  She has been a member of the Salvation Army since 1995 and a Justice of the Peace since 1999.  She is not married.  She has no children.  Ms Zhang is her only relative in Australia.  Ms Fan arrived in Australia in 1990.  She was granted Australian citizenship in 1996.  From 1997 to 2017 Ms Fan visited China on numerous occasions. The accommodation Ms Fan shares with Ms Zhang is provided by the Salvation Army. 

8. The Department’s file includes Ms Zhang’s husband’s death certificate; notarial certificates regarding his deceased estate and other matters; a copy of Ms Fan’s Australian citizenship certificate; Australian and Chinese bank statements; receipts; medical reports concerning Ms Zhang; letters in support of the application; statutory declarations by friends of Ms Fan, including Mr Cao; and statements by Ms Zhang and her children in support of the application.   The material submitted to the Tribunal includes further reports about Ms Zhang; further financial documents; and a psychologist’s report about Ms Fan. 

9. Ms Fan does not dispute the calculations set out in the primary decision that show that Ms Zhang had a surplus of pension income over basic expenses. 

10. Ms Fan told the Tribunal that the youngest of her brothers has visited Australia and cared for Ms Zhang when Ms Fan has visited China but her brothers have not financially supported her parents.  (In their statements submitted to the Department, Ms Fan’s brothers set out financial, health and practical reasons for saying that they were unable to look after Ms Zhang).  Ms Fan further told the Tribunal about the occasions when she gave money to Mr Cao and other friends to take to her parents in China.  In relation to particular, large amounts she provided - $10,000 in 2011, $20,000 in 2012 and $50,000 in 2014 (Ms Fan thought the year was 2013) – Ms Fan said they were for her father’s medical treatment and funeral expenses. 

11. Ms Fan gave evidence that her mother’s pension was about 3,000 RMB per month but the cost of a carer in China had been about 5,000 RMB per month.  Money provided by Ms Fan was for the purpose of paying for the carer but also for expenses such as health products.   

12. Mr Cao confirmed that on three or four occasions over the years he had taken thousands of dollars to Ms Fan’s parents on her behalf, including $7,000 in 2010.  Ms Wang gave evidence that since 2014 until recently she has provided care to Ms Zhang in Australia.  Ms Wang had only general knowledge about Ms Fan’s financial support for her parents. 

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. On the basis of the medical evidence, referred to further below, and the oral evidence, the Tribunal accepts that Ms Zhang was not able to attend the hearing and give evidence.  The Tribunal accepts the veracity of the evidence given by Ms Fan and the witnesses. 

15. Clause 838.212 is a time of application criterion requiring that the applicant be an aged dependent relative of an Australian relative.  Clause 838.221 is a time of application criterion requiring that the applicant continues to satisfy cl.838.212.

16. There is no controversy that Ms Zhang is a relative of an Australian relative, Ms Fan; that Ms Zhang does not have a spouse or de facto partner; and that she is old enough to be granted an age pension under the Social Security Act 1991.  The issue is whether at the time of application Ms Zhang had been dependent on Ms Fan for a reasonable period and remained so dependent and, if so, whether she continues to be dependent. 

17. 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).

18. 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]. In the circumstances of this case a reasonable period includes time before Ms Zhang came to Australia in September 2014: see Fernandez v MIBP [2015] FCCA 1698 especially at [13]-[15], and Fernandez v MIBP [2015] FCA 1265. 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]. That is to say, it is not the case that an applicant must have a lack of choice before he or she can be said to be wholly or substantially dependent or reliant on the other person.

19. The Tribunal has referred to the reasons given by the delegate for refusing the visa.  Among other things, the delegate referred to a lack of evidence to substantiate the transfer of funds by Ms Fan to Ms Zhang.  The Tribunal considers that credible, reliable oral evidence was given by Ms Fan and Mr Cao.  The problem is that the evidence still does not indicate that this was financial support for Ms Zhang to meet her basic needs for food clothing and shelter. 

20. Ms Fan told the Tribunal that her father’s deceased estate consisted more or less only of the apartment in which Ms Zhang lived before she came to Australia in September 2014.  Ms Zhang became the sole beneficiary after her children waived any entitlement.  Ms Zhang was therefore not receiving financial support from Ms Fan to meet her basic needs for shelter.  Ms Zhang’s apartment was subsequently sold.  Ms Fan said that the proceeds were put into Ms Zhang’s bank account.  (The deposit was said to explain an increase in funds that was noted by the delegate.  A portion of the funds has been used by Ms Fan to purchase a grave site for Ms Zhang in Australia). 

21. The Tribunal has noted, first, that the delegate referred to the surplus of Ms Zhang’s monthly Chinese pension income over her “monthly basic needs expenses” before she came to Australia in September 2014 and, secondly, that Ms Fan does not dispute the delegate’s calculations.  The delegate evidently made use of figures provided in a statement by Ms Fan’s brother Fan An Liang.  The Tribunal is satisfied that the calculations are sound.  It is not necessary to set out the calculations in detail.  It is necessary to say only that the figures show that when the pension is compared with expenses (food and utilities were the particular ones recorded) there is a surplus.  According to Ms Fan’s oral evidence, the money she provided was substantially, if not wholly, for her father’s health care when he was alive, and for a carer for Ms Zhang’s before and after Ms Fan’s father died. 

22. Since Ms Zhang came to Australia in 2014 she has continued to receive her Chinese pension.  Ms Fan has been paying for medical insurance and paying various medical and other bills for Ms Zhang.    

23. On the whole of the evidence before it, the Tribunal is not satisfied that at the time of application Ms Zhang had been dependent on Ms Fan for a reasonable period and remained so dependent.  The Tribunal is therefore not satisfied that Ms Zhang continues to be dependent.    

24. The Tribunal is not satisfied that Ms Zhang is the aged dependent relative of an Australian relative at the time of application or the time of decision for the purposes of cl.838.212 and cl.838.221.  The Tribunal therefore finds that Ms Zhang does not meet the criteria for a Subclass 838 visa. 

25. In respect of the other visa subclasses there is no material which would permit a finding that Ms Zhang meets prescribed criteria: see has other children in China, and she does not claim to be the carer of an Australian relative. 

    REFERRAL TO THE MINISTER

26. Section 351 of the Act provides that if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. 

27. In deciding whether to refer the matter to the Minister for consideration under s.351 the Tribunal has had regard to the President’s Direction Conducting Migration and Refugee Reviews, especially at paragraphs 16.1 – 16.7 concerning referrals for ministerial intervention and the Minister’s Guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J) available in the Procedures Advice Manual 3 (“the Minister’s Guidelines”).

28. The Tribunal notes that Ms Zhang is in the community and that she holds a bridging visa.  There is nothing before the Tribunal to indicate that there is any compliance or other concern about her.

29. Among other things, the Minister’s Guidelines state that the Minister may consider exercising his discretion in cases that exhibit one or more “unique or exceptional circumstances”.  The Guidelines then identify factors that may be relevant, individually or cumulatively, in assessing whether a case involves unique or exceptional circumstances. 

30. The most significant factor in this case is that there are compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and serious hardship to the person.

31. The medical evidence submitted to the Department includes a letter by Ms Zhang’s GP, Dr Jianhua Zhou, dated 1 September 2015.  The letter refers to strokes suffered by Ms Zhang (in 2010 and in 2014).  Ms Zhang’s medical conditions include hypertension and severe lumbar spine canal stenosis that makes her wheelchair bound.  Dr Zhou advised Ms Zhang not to travel.  Ms Zhang has suffered falls.  She contracted pneumonia and was hospitalised in 2015.  She was hospitalised in 2017 also.  A hospital social worker’s report dated 14 June 2017 that was submitted to the Tribunal describes Ms Zhang as “a high fall risk”.  The social worker suggests that Ms Zhang may have dementia.  Ms Zhang requires constant supervision.  Residential care is recommended.  Ms Wang gave detailed evidence to the Tribunal about the needs that Ms Zhang has in relation especially to toileting and eating.  The Tribunal was told that as the holder of a Bridging E visa Ms Zhang’s access to aged care services or support has been very limited. 

32. Another significant factor is whether there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen.  The situation for Ms Zhang has understandably been emotionally difficult for Ms Fan.  It has also been very stressful for her.  The stress Ms Fan was experiencing as long as three years ago was recognised in a letter of support written by a Victorian senator in September 2015.  The stress Ms Fan has been experiencing is also the subject of a report by Dr Therese Meallin, Clinical Psychologist, dated 7 August 2018 concerning Ms Fan.  In her letter Dr Meallin discusses options for the protection of Ms Fan’s mental health.  That is obviously a significant matter even if Dr Meallin does not go so far as to predict serious, ongoing and irreversible harm and continuing hardship for Ms Fan. 

33. A further factor still is whether there are exceptional benefits that would result from Ms Zhang being able to remain in Australia.  Before considering this factor the Tribunal mentions that a letter on behalf of the Salvation Army dated 16 November 2016 referred among other things to Ms Fan’s consideration of the options in the event that Ms Zhang could not stay in Australia.  The options include returning to China – that is on the assumption that Ms Zhang would be fit to travel.  Ms Fan told the Tribunal in effect that she has lost her Chinese citizenship and that she could not meet the Chinese government’s conditions for it to be restored: she does not have a residential address; she does not have a source of income there; and she does not have a child who could care for her in old age.  The Tribunal mentions in passing that Ms Fan told the Tribunal that the trips she has made to China since Ms Zhang arrived in Australia in 2014 were to pay respects to her ancestors but also to inquire about how she could return to China if she decided to. 

34. In addition to the Salvation Army letter there is material that was submitted to the Department and to the Tribunal such as media reports that refers to Ms Fan’s contribution to local and international relief efforts and her general contribution to the Australian Chinese community.  Ms Fan has risen to the rank of major.  (According to the Salvation Army’s website that is the rank of an officer who has completed further studies’ and 15 years’ service)[1]. 

    [1] >

    Ms Fan may not have a realistic option of returning to live in China.  Whatever the case, it is reasonable to consider that if Ms Zhang is permitted to remain in Australia Ms Fan will wholeheartedly choose to remain with the result that there will be significant continuing benefits to the Australian community. 

35. Examining relevant factors individually and cumulatively, the Tribunal considers that this is a case where it would be appropriate to make a referral to the Minister.

    DECISION

36. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    John Billings
    Senior Member