Zapata Lanz (Migration)

[2024] AATA 41

Zapata Lanz (Migration) [2024] AATA 41 (5 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Herenia Josefina Zapata Lanz

REPRESENTATIVE:  Mr Nathan Stephen Willis (MARN: 1467692)

CASE NUMBER:  2205595

HOME AFFAIRS REFERENCE(S):          CLF2018/172148

MEMBER:Andrew McLean Williams

DATE:5 January 2024

PLACE OF DECISION:  Brisbane

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:

·clause 838.212 of Schedule 2 to the Regulations; and

·clause 838.221 of Schedule 2 to the Regulations.

Statement made on 05 January 2024 at 3:23pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – aged dependent relative of an Australian relative – wholly or substantially reliant – substantial period of dependency – living conditions in Venezuela – bank transfers – decision under review remitted  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 838.111, 838.212, 838.221; rr 1.03, 1.05
Social Security Act 1991

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 Home Affairs on 4 April 2022 thereby refusing to grant Ms Herenia Josefina Zapata Lanz (‘the Applicant’) an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant had applied for the visa on 29 June 2018. 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 Applicant be the ‘aged dependent relative’ of an Australian citizen, permanent resident, or an eligible New Zealand citizen.

3. 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, the primary include clause 838.212.

4. The Delegate refused to grant the visa on the basis that clause 838.212 was not met because the Applicant had not provided answers in response to a Departmental Questionnaire within a specified timeframe. In the absence of information given in response to that questionnaire by the specified deadline the Delegate had determined that there was simply insufficient evidence to be satisfied that the Applicant was the aged dependent relative of her sponsor and daughter Ms Raquel Beatriz Salmeron Zapata.

5. The Applicant and her daughter each appeared before the Tribunal on 29 November 2023 to give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.

6. The Applicant was represented in relation to the review by her authorised representative Dr Nathan Willis (MARN 1467692) of ‘Visa Assist Australia’.  Dr Willis also attended the Tribunal hearing on 29 November 2023 and had provided detailed written submissions (together with supporting evidence) to the Tribunal on 9 November 2023.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The visa application was made on the basis that the Applicant is the aged dependent relative of her daughter Raquel Beatriz Salmeron Zapata, who the Applicant claims as her ‘relative’. Relative is defined for these purposes in regulation 1.03, and means either a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle, niece or nephew (or their step equivalents).

9. In this case Ms Raquel Beatriz Salmeron Zapata is an Australian citizen and is the Applicant’s daughter.  There is satisfactory evidence in proof of that which has already been accepted by the Department. As such, Raquel qualifies under regulation 1.03 as a ‘close relative’ and ‘Australian relative’ of the Applicant.

   Is the Applicant an ‘aged dependent relative’ of her Australian relative?

10. The Applicant is now 80 years of age and has a number of health conditions requiring regular medical treatment.

11. In order 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 must then continue to be an aged dependent relative of that person at the time of decision: clause 838.212, clause 838.221 and clause 838.111. ‘Aged dependent relative’ is defined in regulation 1.03 of the Regulations.

12. Broadly speaking, a person will be an ‘aged dependent relative’ of another if: they are a ‘relative’ within the meaning of regulation 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).

13. As already indicated, on the basis of the evidence now before it, the Tribunal is quite satisfied that Raquel is an Australian citizen and is also the only daughter of the Applicant. 

14. The Tribunal is further satisfied that - as at the time of applying for the visa - the Applicant was: a divorcee; who did not have either a spouse or a de-facto partner; and that the Applicant was then already 74 years of age and hence of an age at which she would have been entitled to qualify for an aged pension under the Social Security Act.  These things remain true as at the date of the Tribunal’s decision.     Accordingly, each of subparagraphs (a) and (c) of the definition of ‘aged dependent relative’ in regulation 1.03 are met by the Applicant: both the time of application and at the time of decision.

    Is the Applicant ‘dependent’ on the Australian relative?

15. The central issue in this case relates to the question of dependency.  In order to be an aged dependent relative the Applicant must satisfy the requirements of regulation 1.03(b), which requires that she be ‘dependent’ upon her daughter Raquel. 

16. The definition of ‘dependent’ is set out in regulation 1.05A(1) of the Regulations. Generally speaking, an Applicant will be assessed as ‘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 was their reliance on any other person, or source of support.

17. 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 regulation 1.05A does not carry any implication of the notion of necessity or lack of choice: Huynh v MIMIA (2006) 152 FCR 576 at [43].

18. As 28 June 2018 (when the visa application was commenced), the Applicant had been in living in retirement in Venezuela on a state pension, with no other means of financial support. Evidence placed before the Tribunal reveals that the Applicant’s Venezuelan pension was the equivalent of only approximately $3.84 USD per month, and that Venezuela has now for a number of years been subject to a financial crisis including extreme hyperinflation. In consequence, living conditions in Venezuela, particularly for elderely pensioners with no other sources of income have become particularly dire and the Applicant’s pension income in Venezuela had become completely insufficient as a means for the Applicant to support herself.  Although the Applicant has two sons in Venezuela both sons are journalists who are extremely poorly paid and they are unable to provide their mother with any financial assistance.  In consequence of these circumstances the Applicant had become substantially financially dependent on her daughter in Australia for a period of approximately 3.5 years prior to 28 June 2018. In her statutory declaration dated 6 November 2023 the Applicant stated, in part:

    I have been financially dependent on my daughter Raquel since on or around the end of 2014 or on around the start of 2015. She has consistently provided me with money to pay for my basic needs including food, shelter, clothing and medical expenses.

19. Statutory declaration evidence from other family members, as well as evidence of bank transfers whilst the Applicant was still residing in Venezuela, are now sufficient to support all of the Applicant’s claims in this regard. 

20. The Applicant, who suffers from significant hypertension and other medical conditions requiring treatment, moved to Australia in August 2017.  Ever since that date the Applicant has been living with her daughter Raquel, and is completely financially dependent on Raquel to provide all of her necessities of daily living.  Statutory declarations from Raquel and her young adult son in Australia Andres Leon (the Applicant’s grandson) afford corroborating evidence of this.  There are also various bank statements and receipts for medical and other expenses of the Applicant that have been borne by Raquel that have been examined by the Tribunal and that demonstrate these claims. All of that evidence is now accepted by the Tribunal.  Financial dependency is obvious.

21. For these reasons the Tribunal considers that subparagraph (b) of the definition of ‘aged dependent relative’ is also met, both at the time of the original visa application, and now, at the time of decision.

22. 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 clauses 838.212 and 838.221.

23. 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

24. 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:

    · clause 838.212 and clause 838.221 of Schedule 2 to the Regulations.

    Andrew McLean Williams
    Member