1409688 (Migration) [2015] AATA 3123 (29 July 2015)

Last Updated: 3 August 2015

1409688 (Migration) [2015] AATA 3123 (29 July 2015)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mrs Manjula Anil Desai

CASE NUMBER: 1409688

DIBP REFERENCE(S): CLF2013/235283

MEMBER: Michael Cooke

DATE: 29 July 2015

PLACE OF DECISION: Sydney

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
• cl.838.221 of Schedule 2 to the Regulations

Statement made on 29 July 2015 at 4:15pm

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 21 May 2014 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 applied for the visa on 25 September 2013. 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 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.838.212 of the Regulations.
3. The delegate refused to grant the visa on the basis that cl.838.212 was not met because the applicant did not meet the definition of dependent.
4. The applicant appeared before the Tribunal on 23 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Nihar Desai, who is the applicant's son. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.
5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing. The registered migration agent had forwarded a comprehensive submission and additional information to the Tribunal prior to the hearing (T1, ff. 41-42, 65-67).
6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa application was made on the basis that the applicant is the aged dependent relative of Mr Nihar Desai, who the applicant claims is their relative.
8. In this case Mr Nihar Desai, is an Australian citizen and is the applicant’s son.

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

9. 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 r.1.03 of the Regulations.
10. 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.
11. In this case, the applicant is 86 years old and is the ‘relative’ of an Australian relative for the purposes of cl.838.212.

Does the applicant have a spouse or de facto partner?

12. The applicant is a widow. 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?

13. 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).
14. 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] FCAFC 122; (2006) 152 FCR 576 at [43].

Findings and reasons in relation to whether the applicant is dependent on their Australian relative within the meaning of r.1.05A.

• The applicant was at the relevant time and for a substantial period immediately prior to that time, wholly or substantially reliant on the other person for financial support to meet their basic needs for food, clothing and shelter.

15. The Tribunal is satisfied that the applicant came to Australia in November 2012 and has been living with her son and has been wholly reliant on him for her basic needs since that date. She applied for the visa (the subject of this review) on 25 September 2013 a year later. Back when she was living in India she lived as a widow in a flat that needed constant maintenance and is now condemned so she cannot return there. At the same time she is well into her 80s with a plethora of health issues so she had to have on site staff to provide her with food and assist with her shelter. A relative that lived close by kept an eye on her according to her son and took her to a nearby clinic often for her various maladies.
16. Her representative’s submission informs that her Indian pension gravitated from a low Indian Rupees 8242 in January 2010 to Indian rupees 12850 by June 2012. He maintains she required Indian Rupees 29000 to meet her basic needs. In other words that she was substantially reliant on him for her basic needs to meet the differential with her pension payment. The Tribunal observed that this rise was substantial when one considered the status of India economically. The sponsor alerted the Tribunal that this dramatic rise was occasioned by a significant increase in the cost of living in India - a by-product of its rapid economic growth in the early 21st century.
17. His mother he argues had to contend with this as a pensioner and she could not have met her basic needs in her individual circumstance without a significant infusion of money from remittances he sent her by bank draft. He insists (in his submission to the Tribunal) that a large amount of the money he sent her was for the constant maintenance of her aged flat. There were also constant body corporate fees and utilities expenses which were a compulsory part component of providing her with the basic need of shelter. The fact that the flat is now condemned (see Indian document) is, he argues, evidence of the veracity of this claim regarding constant maintenance. His further claim is that the maintenance was an integral part of the shelter component of the basic needs test.
18. The Tribunal is prepared to accept this argument as plausible. He further opines that due to her age and incapacity and the fact she lived alone In India, meant she needed to hire in house staff/carers to prepare and cook her basic need of food at a cost of Indian Rupees 10000 per month. She lived alone since becoming a widow and with no direct family in situ. Thus the remittances had to also cover this added cost without which she could not have enjoyed the very necessary basic need of food/sustenance. The Tribunal is prepared to accept this argument as also plausible.
19. The Tribunal finds the applicant was at the relevant time and for a substantial period immediately prior to that time, substantially reliant on the other person (her son) for financial support to meet their basic needs for food, clothing and shelter.
    • The applicant’s reliance on that person 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.
20. The Tribunal is satisfied that the calculations of the sponsor of his supplementary monetary costs for the applicant’s basic needs when in India are credible and supported by bank details. The Tribunal is also satisfied that the sponsor’s mother is an integral component of his household in Australia.
21. The Tribunal finds that the applicant’s reliance on that person (her son) 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 when she was in India and since December 2012 in Australia.
22. 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?

23. 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. Different age qualifications apply for men and women and depend upon the date of the applicant’s birth.
24. The applicant was born in India on 10 September 1929. For these reasons subparagraph (c) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.
25. 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.
26. 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

27. 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
    • cl.838.221 of Schedule 2 to the Regulations.

Michael Cooke
Member