1415251 (Migration) [2015] AATA 3542 (23 October 2015)

DECISION RECORD
DIVISION:	Migration & Refugee Division
APPLICANT:	Mrs MEMORLINE LIM
CASE NUMBER:	1415251
DIBP REFERENCE(S):	CLF2014/71529 
MEMBER:	Alan Duri
DATE:	23 October 2015
PLACE OF DECISION:	Sydney
DECISION:	The tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 23 October 2015 at 7:54am

1.  	
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 20 August 2014 to refuse to grant Mrs Lim an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958.
2.  	Mrs Lim applied for the visa on 8 May 2014. The sponsor of the application was Mrs Lim’s daughter Maria Fides Alarca, an Australian citizen.
3.  	Mrs Lim is seeking to satisfy the criteria for the grant of a Subclass 838 visa which require 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). 
4.  	The department’s file contains the following information:
•	Mrs Lim was born on 4 September 1942 in the Philippines. Her husband Fortunato Lim died in 2007 and Mrs Lim has not remarried.
•	Mrs Lim has five adult children, two of whom Ms Natalin Cagawan and Ms Alarca are Australian citizens and usually reside in Australia. 
5.  	The delegate refused to grant the visa on the basis that cl.838.212 was not met.  The delegate was not satisfied that Mrs Lim was wholly or substantially reliant on her sponsor Ms Alarca for a substantial period of time before the visa application.  In particular the delegate noted that Mrs Lim was receiving assistance from other children.
Hearing
6.  	Mrs Lim appeared before the tribunal on 21 October 2015 to give evidence and present arguments. The tribunal also received oral evidence from Ms Alarca.  The tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.
7.  	Mrs Lim and Ms Alarca gave consistent evidence which in summary is as follows:
•	Mrs Lim has not re-partnered since her husband died in 2007.  She has never been employed and has no source of personal income.
•	Mrs Lim’s husband owed various debts and her daughter Natalin paid off those debts.  In consideration Mr Lim transfer title of his property to Natalin.
•	Mrs Lim continued living in the property following her husband’s death.  She is not required to pay rent, but she is responsible for outgoings such as electricity.
•	Mrs Lim has two daughters and one son who live in the Philippines but due to their circumstances are not in a position to provide financial assistance to Mrs Lim.
•	Mrs Lim’s daughters in Australia Ms Alarca (the sponsor) and Natalin have an arrangement whereby Ms Alarca provides Mrs Lim with regular money (about $300 per month) for personal expenses to cover her food, clothing, outgoings such as electricity (about 1,800 pesos per month) and domestic helper (about 2,500 pesos per month).  Natalin on the other hand, pays for items such as travel costs and visa costs.
•	Since 1999 Mrs Lim has spent more time in Australia then in the Philippines and usually lives with Ms Alarca, who provides her with her costs of daily living.
Consideration of claims and evidence
8.  	The visa application was made on the basis that Mrs Lim is the aged dependent relative of her daughter Ms Alarca, an Australian citizen.
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.
aged dependent relative
in relation to a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means a relative who:
(a)      does not have a spouse or de facto partner; and
(b)      has been dependent on that person for a reasonable period, and remains so dependent; and
(c)      is old enough to be granted an age pension under the Social Security Act 1991.
10.  	Mr Lim the ‘relative’ of an Australian relative for the purposes of cl.838.212.   
11.  	Based on a copy of a Filipino death certificate, the tribunal finds that Mrs Lim was widowed on 29 June 2007.  The tribunal accepts that Mrs Lim has not re-partnered.  Therefore Mrs Lim meets paragraph (a).  
12.  	Various Filipino documents, such as her passport, show that Mrs Lim was born on 4 September 1942.  Therefore paragraph (c) of the definition of ‘aged dependent relative’ is met.
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:
1.05A      (1)      Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a)      at the time when it is necessary to establish whether the first person is dependent on the other person:
(i)      the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii)      the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
(b)      the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.
14.  	Regulation 1.05A(1)(b) is not applicable in this case.
15.  	The visa application was lodged on 8 May 2014.  It is common ground that in the last year and as at the time of the decision Mrs Lim has been living with, and fully financially supported by her daughter the sponsor Ms Alarca.  
16.  	The question before the tribunal concerns whether Mrs Lim was wholly or substantially reliant on Ms Alarca for a substantial period before the visa application (8 May 2014).
17.  	The term “substantial period” is not defined in the Regulations or Act.  However at any rate the period in question covers the period before the visa application when Mrs Lim was living in the Philippines. 
18.  	The facts of this case are straightforward.  Mrs Lim was living in a property rent free owned by her daughter Natalin.  Mrs Lim receives financial support from both Natalin and Ms Alarca.  Ms Alarca sends money that is used by Mrs Lim for her day the day expenses, while the money sent by Natalin is used for major expenses such as travel and visa costs.
19.  	Given that Mrs Lim lives in a house owned by Natalin and that she also receives financial support from both daughters, it is apparent that Mrs Lim is not wholly reliant on Ms Alarca for financial support to meet her basic needs for food, clothing and shelter
20.  	This leads to the question of whether Mrs Lim is substantially reliant on Mrs Alarca for financial support to meet her basic needs for food, clothing and shelter
21.  	The term ‘substantially reliant’ involves a concept of predominance.  This requires the tribunal to ask whether the applicant was predominantly or “primarily, essentially or in the main” dependent on the other person (Huang v MIMA [2007] FMCA 720 and MIMA v Graovac [1999] FCA 1690).  In Graovac, the Court stated:
Scott's case establishes that "substantially" where used in the phrase "wholly or substantially dependent" is appropriately paraphrased by the words "in the main", or "as to the greater part": Secretary, Department of Social Security v Wetter (1993) 40 FCR 22, per Hill J. In Turner v Official Trustee in Bankruptcy (1996) 71 FCR 418, 422 the Full Court held that the phrase "the whole, or substantially the whole, of the money paid for the purchase" in s 116(3) of the Bankruptcy Act 1966 would be satisfied where "nearly all of" the money used in payment comes from protected funds, but it is not sufficient for a significant part of the purchase price (in that case almost half) to come from protected funds. 
Thus Scott's case, and cases which have followed it, treat "substantially" in the phrase "wholly or substantially dependent" as involving the notion of predominance. When the Full Court in Scott adopted the paraphrase of a person who is "primarily, essentially or in the main" dependent upon another person, in our opinion the Court was describing, in slightly different ways, the same idea, rather than expressing three slightly different ideas. That colours or confines the signification of "essentially". 
22.  	There is no mathematical formula that determines when the reliance is substantial as opposed to not being substantial.  This will be a question of fact and degree.  However, case law such as Graovac indicates that “substantially” would be met where, for example, in a case where “nearly all” of the funds are provided but not so where half the funds are provided.     
23.  	There are two hurdles in this case.  First of all, Mrs Lim’s shelter is provided by Natalin.  The provision of shelter is manifestly a significant element of a person’s basic needs.  The second problem is that Mrs Lim receives financial support from two sources.  Although the support from Mrs Alarca is earmarked for day-to-day living costs for food and clothing etc., the fact remains that Mrs Lim has financial support from two sources.  The earmarking of one source of financial support for a specific purpose does not mean that Mrs Lim is substantially reliant on that particular source (in this case Mrs Alarca’s remittances) for the basic needs because she has an alternate source of financial support (the remittances from Natalin).
24.  	On the facts of the case, the tribunal considers that as at the time of the visa application Mrs Lim was not substantially reliant on Ms Alarca  for financial support to meet her basic needs for food, clothing and shelter
25.  	This means that the tribunal is unable to be satisfied that Mrs Lim is the aged dependent relative of an Australian relative at the time of application for the purposes of cl.838.212.
26.  	For the reasons above, the tribunal finds that Mrs Lim does not meet the criteria for a Subclass 838 visa. In respect of the other visa subclasses there is no material which would permit a finding that she meets prescribed criteria for the visa sought. 
decision
27.  	The tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Alan Duri
Member