Zhou (Migration)

[2020] AATA 2912

Zhou (Migration) [2020] AATA 2912 (9 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Guozhi Zhou

VISA APPLICANT:  Ms Guiming Chen

CASE NUMBER:  1926160

DIBP REFERENCE(S):  OSF2015/000085

MEMBER:Kira Raif

DATE:9 July 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 114 (Aged Dependent Relative) visa:

·cl.114.211 of Schedule 2 to the Regulations; and

·cl. 114.221 of Schedule 2 to the Regulations.

Statement made on 09 July 2020 at 3:41pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 114 (Aged Dependent Relative) – dependant on Australian relative for reasonable period – wholly or substantially reliant – level of financial support to visa applicant by review applicant and siblings – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A(1), Schedule 2, cls 114.211, 114.221

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 Immigration on 1 August 2019 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 8 January 2015. The delegate refused to grant the visa on the basis that cl.114.221 was not met because the delegate was not satisfied the applicant was an aged dependent relative of an Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, 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.

4. The review applicant appeared before the Tribunal on 9 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from two of the review applicant’s siblings. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration

   Relevant law

5. At the time the application was made, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer). In the present case, the visa applicant is seeking to satisfy the criteria for the grant of a Subclass 114 visa which requires the primary visa applicant to be the aged dependent relative of an Australian citizen, permanent resident or an eligible New Zealand citizen. The criteria for a Subclass 114 visa are set out in Part 114 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

6. To be granted a Subclass 114 visa the visa 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.114.211 and cl.114.221. ‘Aged dependent relative’ is defined in r.1.03 of the Regulations.

7. 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.

8. 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.

9. 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.

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

10. The applicant claims to be a widow and she has provided a notarised death certificate relating to her late husband. She meets subparagraph (a) of the definition of ‘aged dependent relative’. The applicant was born in February 1933 and the Tribunal is satisfied she is old enough to be granted an age pension under the Social Security Act 1991. The applicant meets subparagraph (c) of the definition of ‘aged dependent relative’.  The issue is whether the applicant has been dependent on the Australian relative for a reasonable period when the application was made, and remains so dependent. The applicant claims to be dependent on the sponsor, who is her son.

11. The visa applicant stated in her application that she has five children. Two of her daughters live in China while three children, including the sponsor, reside in Australia. The visa applicant stated that she has only one son and that son has the responsibility of providing for his parents. Since the death of his father, the son has been the sole financial supporter of his mother and the visa applicant lives in an apartment owned by the sponsor.

12. The visa applicant subsequently provided a statement outlining her financial circumstances. (Its details are set out in the primary decision record). The visa applicant stated that her food, shelter and clothing expenses are RMB 2000 a month and each of her five children paid their share to the applicant. The visa applicant stated that she lives in Guangzhou on her own and the place of residence is owned by the government. The visa applicant stated that she received on average RMB 2000 a month from her children and that her son, the sponsor, left about RMB 20,000 in cash when he migrated to Australia in 2012. The visa applicant stated that her five children share the expenses equally and the money is provided by cash or by supporting another relative in Australia. The visa applicant stated that she receives a monthly pension of about RMB 500 and it is not sufficient to cover her daily expenses.

13. The review applicant provided further written evidence  to the Tribunal on 23 June 2020. The review applicant provided a statement by the visa applicant in which she stated that she is a widow, 86 years of age. She states that her children ‘take care’ of her. She receives a pension of approximately RMB 500 a month and the rest of her living expenses are provided essentially by her son Guozhi Zhou, who is her primary carer. The visa applicant states that she lived with that son in China and he continued to care for her after his migration to Australia. The visa applicant states that she is dependent on her son who provides funds for her basic needs including food, clothing and accommodation, and has done so for over ten years. The visa applicant states that all her daughters had given her money but this cannot be considered as a commitment. They do so because they are good children and she does not expect it and considers it to be a gift, while her son looks after her on an ongoing basis and provides for her financially because he is obligated to do so as the only son. The visa applicant states that she relies on her son for her daily expenses. The same information was provided in the declarations provided by the visa applicant’s children. In oral evidence, the representative refers to the cultural considerations and expectations, stating that it is the son who is expected to provide support to the mother and any support from the daughters is not an obligation and has not been regular or substantial.

14. In the Tribunal’s view, the assessment of dependence is not concerned with the parties’ motivations for providing support. That is, if the son provides funds because he is the only son and therefore feels the obligation to provide financial support to his mother while other children do so because they wish to provide ‘gifts’ to their mother, it is still necessary to consider the entirety of such support, including the support from the daughters because it is not relevant whether they provide support as an obligation or as a gift. The legislation requires an assessment of the factual circumstances – and the provision of funds to the applicant – not the motivations behind such funds.

15. The review applicant provided a written submission to the Tribunal on 3 July 2020. The review applicant referred to the reasons in the delegate’s decisions and addressed the delegate’s concerns. The review applicant refers to the poor communication with the migration agent, which resulted in incomplete or incorrect information being submitted to the delegate. In particular, the review applicant states that it was incorrect to state that the responsibility for support of the visa applicant was shared among all the children and the review applicant states that he had always assumed full responsibility for the care and support of his mother, while his siblings would assist when they could and there was never a commitment and the responsibility was never shared equally. The review applicant refers to having limited contact with his previous migration agent.

16. In oral evidence, the review applicant told the Tribunal the previous migration agent misrepresented the situation and because of his lack of English, he did not check the information but he fully relied on the agent. The Tribunal does not accept that explanation. The Tribunal is mindful that the review applicant would have been able to communicate with his previous agent in his own language and had the capacity to check the content of any submissions made on his behalf.

17. The Tribunal finds the review applicant’s submission unconvincing. The Tribunal does not accept that  the earlier representations made to the delegate were erroneous or misleading. The Tribunal does not accept that both the migration agent and the review applicant would take so little care or interest in the matter as to provide incorrect information in relation to something so central to this visa category as the source of financial support for the visa applicant. The Tribunal does not accept that the previous representative would submit information about the equal sharing of responsibility without any input from the review applicant or the family, given that such information was entirely incorrect as the review applicant now claims. The Tribunal also notes that  the information about the visa applicant’s income and expenses has been consistent and it makes little sense that some of the information would be accurately recorded by the previous agent while other information would be entirely inaccurate or misleading. The Tribunal does not accept that the review applicant would play no role in monitoring what information was being submitted on his behalf or on behalf of his elderly mother, noting the significance of the outcome.

18. The Tribunal is cognisant of the information contained in the written submission dated 25 July 2019 and the Tribunal does not accept the previous representative had provided that information without any input from the family as the review applicant now suggests. In the Tribunal’s view, it is more likely that, having received the adverse decision from the delegate, the review applicant has now determined that different information would be more beneficial to his case. The Tribunal does not consider it appropriate to disregard the information submitted earlier to the delegate concerning the sources of income, in favour of the information now submitted to the Tribunal.

19. The visa applicant claimed in her primary application, through her migration agent, that all of her children support her equally. The review applicant claims that is not correct. Should the review applicant’s present evidence be accepted, it may be that the visa applicant had provided information that was false or misleading in a material particular concerning her financial affairs. This is relevant in assessing Public Interest Criterion 4020.

20. The review applicant submits that he has been providing support to his mother for at least 10 years. He resided with his mother prior to his migration to Australia in 2012 and solely provided all aspects of care. He continued with the care after his migration to Australia in 2012. The review applicant states that he left funds in China prior to his migration to Australia with the intention of these funds to be used to support his mother until he settled in Australia. Once he settled in Australia, some funds were transferred and frequently funds were hand-given to the visa applicant, which explains absence of transfer receipts. The review applicant has presented movement records for himself and his siblings. (The Tribunal is of the view that these can equally show that the funds were given by other siblings during their trips to China and not only the funds that were given by the review applicant.) The review applicant states that as the only son, he considers it his duty to care for his mother and the support provided by other siblings is ancillary rather than an obligation or commitment and it was done without a ‘defined frequency’. Such assistance was in the form of gifts and need not be taken into account. The Tribunal does not accept that submission. As noted above, the legislation is not concerned with the giver’s motivations or perception of responsibility. It is concerned with the fact of giving insofar as it may establish dependence, not why the funds are being provided.

21. Overall, the Tribunal accepts that the review applicant has been providing financial support to the visa applicant and has been doing so for a number of years before the application was made. However, the Tribunal does not accept the review applicant’s evidence that  the information contained in the primary application was erroneous and that he is the primary source of financial support for his mother. The Tribunal prefers the earlier evidence given to the delegate, which indicates that financial assistance was provided by all the children. Whether other children consider such assistance to be gifts rather than an obligation is irrelevant. The Tribunal finds that the financial assistance had been provided by all the children. In the Tribunal’s view, that is consistent with the review applicant’s statement that on most occasions, money was hand-delivered when a relative travelled to China and it is not only the review applicant but the other children also who undertook such trips. The Tribunal finds that each of the visa applicant’s children have provided financial support to the visa applicant.

22. In oral evidence the review applicant confirmed that his father passed away many years ago and since that  time he has been the one who has provided care to his mother. Since his migration to Australia, his mother has been living by herself in a public housing accommodation owned by the government. His mother has to pay rent under RMB 200 and the utility bills of RMB 500-600 a month, which he provides for. The review applicant said his mother receives a pension of about RMB 500 a month.

23. The review applicant said he migrated to Australia in 2012. At the time he left RMB 20,000 to his mother and since that time he has been sending money to his mother through his sisters because he knew what his mother’s expenses were and he would give several thousand RMB through his sisters when they travelled.

24. The Tribunal notes that despite the different evidence about the sources of support, the evidence about the visa applicant’s financial affairs has been consistent. The visa applicant in her primary application and the review applicant in his application before the Tribunal gave consistent evidence about the visa applicant’s pension and expenses associated with her shelter, food and clothing. The Tribunal accepts that evidence.

25. For the reasons stated above, the Tribunal prefers the evidence in the primary application and finds that the visa applicant has been receiving equal financial support from all of her children. The Tribunal accepts that the review applicant has been providing financial support to the visa applicant from the time he has been living in China and following his migration to Australia. However, the Tribunal is not satisfied the visa applicant’s reliance on the sponsor has been greater than her reliance on any other source (being her other four children). The Tribunal has formed the view that all of the children had been providing financial support to their mother. That is the evidence of the review applicant’s two sisters, as well as the evidence of the review applicant himself, who concedes that others also provide financial assistance to their mother. Even if the review applicant’s support is greater than the support provided by individual children, the Tribunal is not satisfied the review applicant’s support outweighs the combination of the support provided by other children. That is, the Tribunal is not satisfied the visa applicant’s reliance on the sponsor is greater than her reliance on any other source, being her other four children plus the pension. The Tribunal is not satisfied the visa applicant meets r. 1.05(1)(a).

26. The Tribunal has considered whether the visa applicant is incapacitated. There is no medical evidence before the Tribunal, however, the Tribunal is mindful that the visa applicant is of advanced age. The review applicant’s evidence before the Tribunal is that his mother retired when she was in her sixties and she is not capable of working. The review applicant also states that  his mother is depressed and is emotionally dependent on him and he calls her every day. Despite the lack of medical evidence, the Tribunal is prepared to accept, given the visa applicant’s age, that she is incapacitated for work due to the total or partial loss of bodily or mental functions.

27. Evidence before the Tribunal is that the sponsor has been providing financial support to the visa applicant. It is not in dispute. While the Tribunal has formed the view that other siblings also provide support to the visa applicant, there is no requirement in subparagraph (1)(b) that the visa applicant’s reliance on the sponsor is greater than her reliance on any other source. The Tribunal accepts that the financial support from the sponsor is necessary and essential to meet her financial needs. The Tribunal is satisfied the visa applicant has been substantially reliant on the sponsor for financial assistance because the visa applicant is incapacitated for work due to the total or partial loss of her bodily or mental functions. The Tribunal is satisfied the visa applicant meets r. 1.05(1)(b) and that she was, at the time of the application, and is at present, dependent on the sponsor.

1. The visa applicant is a mother and a relative of the sponsor. The Tribunal is satisfied she is a dependent relative. 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.114.211 and cl.114.221.

   Conclusion

2. 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 114 visa.

   DECISION

3. The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 114 (Aged Dependent Relative) visa:

   ·cl.114.211 of Schedule 2 to the Regulations; and

   ·cl. 114.221 of Schedule 2 to the Regulations.

   Kira Raif
   Senior Member