Alania, Elena [2004] MRTA 1440 (10 March 2004)

CATCHWORDS: Review of visa refusal - Subclass 114 (Aged Dependent Relative)

DECISION: The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of an Other Family (Migrant) (Class BO) visa.

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the delegate). Mrs Valentina ALANIA (the visa applicant), a national of the Russian Federation, born on 21 October 1939, applied for an Other Family (Migrant) (Class BO) visa on 26 January 2001. The delegate's decision to refuse to grant the visa was made on 26 November 2002.

Mrs Elena ALANIA (the review applicant), the sponsor of the visa applicant, lodged a valid application for review with the Tribunal on 19 February 2003. The decision is reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.

The Migration Act 1958 (the Act) and the various Regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various Regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.

The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa to the Department for reconsideration. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.

The criteria and policy immediately relevant to this review are:

Part 114 of Schedule 2 to the Regulations

Regulation 1.03 - definition of Aged Dependent Relative

Procedures Advice Manual 3 - Aged Dependent Relative.

The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

The Tribunal has the following documents:

The visa application was made on the basis that the visa applicant is the 'aged dependent relative' of the review applicant, who is the visa applicant's daughter. The review applicant has been an Australian citizen since June 1996.

The visa applicant stated in her application that both her parents are deceased, that she is now divorced and that her only child was the review applicant.

The following documents were submitted in support of the visa application:

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The visa applicant's divorce certificate and an English translation showing that her marriage to Nikolay Sergeevitch ZAVIDONOV in 1971 was dissolved on 26 May 2000;

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The visa applicant's divorce certificate and an English translation showing that her marriage to Karamak Ilyich ALANIA was dissolved on 19 May 1966;

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A statutory declaration dated 24 December 2000 by Lioudmila LITVINIOUK stating that she took $1000 from the review applicant and handed it on 29 April 2000 to the visa applicant in Moscow;

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A statutory declaration dated 28 December 2000 by Klara LIPKINA stating that she took $1500 from the review applicant and handed it on 1 July 1997 to the visa applicant in Moscow; and

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A statutory declaration dated 5 January 2001 by Veronita KRONINA stating that she took $500 from the review applicant and handed it on 14 June 1999 to the visa applicant in Moscow.

In a statement lodged with the visa application, the review applicant stated that her mother was on a total monthly pension of 1100 roubles which at the current rate was equal to $70.67. This was a mere pittance that did not provide for everyday needs. The review applicant and her husband have been supporting her mother for many years by sending money through visitors to Russia and parcels of clothing and dry foods. They were no longer able to contact many of them and were therefore submitting statutory declarations from only three of them. She declared that ever since her husband started earning, she and her husband have been sending at least $2000 per year to her mother.

At an interview on 11 September 2001with a DIMIA officer, the visa applicant is reported to have stated as follows:

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She lives alone in a one roomed apartment in Moscow. She has lived there alone ever since her ex-husband left her in April 1998 for another woman. She does not know where he lives now. She last saw him in May 2000 when they jointly applied for a divorce, at her request. He continues to be registered at her apartment;

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She stopped working in 1993 and it was difficult to get a job at her age. Now she receives a monthly pension of 1600 roubles per month. Her daughter sends her $2000 a year and parcels of coffee, tea and biscuits; and

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Her apartment was worth about 35000 US dollars.

The delegate stated that the visa was not granted on the basis that the visa applicant did not meet Regulation 114.211 as she did not satisfy the definition of an 'aged dependent relative'. The delegate stated that the primary source of the visa applicant's financial support was her monthly pension. The delegate referred to the fact that she was the owner of her accommodation. The delegate found that the visa applicant was not wholly or substantially reliant on the review applicant for financial support to meet her basic needs for food, clothing and shelter.

On 31 October 2003, the Tribunal disclosed information pursuant to section 359A of the Act, which indicated that the majority of people in Russia live on incomes that are less than that which the visa applicant receives as a pension.

On 3 December 2003, the Tribunal received further information including:

• A submission dated 10 December 2003 which in part states that while the visa applicant does not have to pay rent she is required to pay a monthly amount for maintenance of 420 roubles, that her financial circumstances deteriorated when she separated from her husband, and that her pension does not cover a "basic standard" of living. It was submitted that the review applicant "when she can, sends money to her mother..... This is not done on a regular basis because it is not possible for private individuals to receive foreign currency. Foreign currency can only be exchanged at the bank and one needs to show a foreign passport. The applicant does not have a bank account. Her monthly pension is delivered personally.... When the sponsor is able she sends money with friends and relatives who visit Moscow. When she and her husband visited Moscow in December 2002 and January 2003 she brought Australian Dollars for her mother";

• Extracts of translations of utility accounts in the visa applicant's name;

• An extract of a translation of a certificate dated January 2003 regarding the visa applicant's pension;

• Extracts of translations of certificates dated in 2003 regarding the floor space and value of the visa applicant's property in Russia;

• An extract of a translation of a document regarding the transfer of the property in which the visa applicant resides;

• Translations of receipts for a telephone, washing machine and vacuum;

• An extract of a translation regarding residential registration;

• A statutory declaration by the review applicant regarding prices in Moscow;

• A statement by the visa applicant;

• A letter by the review applicant dated January 2004; and

• Information on pensioners in Moscow, information for international students and from the embassy of the Russian Federation in Australia.

A hearing was held on 17 February 2004. Oral evidence was given by the review applicant, the visa applicant and Mr Berner.

The review applicant stated that her previous sponsorship of her parents had been refused due to her stepfather's health sometime in 1997.

The review applicant indicated that after she and her husband arrived in Australia in March 1994, they studied English. Her employment in Australia to date consists of two months in the summer of 1995 with the Engineering Department at Monash Hospital. She subsequently studied at Victoria University and then after the birth of her child was involved in his care.

Mr Berner stated that he commenced employment in Australia in April 1996 with Hilton Manufacturing. He indicated that his taxable income in the financial years 1997/1998 and 1998/1999 was $37,000 and $40,000 in the financial years 1999/2000 and 2000/2001. His income in subsequent financial years has been approximately $40,000, and can be $42,000 with over time.

The Tribunal discussed the absence of independent evidence of a regular pattern of support to meet the visa applicant's basic needs in respect of food, clothing and shelter prior to the application. Specifically the Tribunal put to the review applicant and her husband that given the nature of the needs in question, one may reasonably expect a regular pattern of support by bank remittances or through other agencies such as Western Union. The review applicant stated that they were unable to open an account for the visa applicant in Moscow. The review applicant stated that only businesses can open bank accounts. On examination she stated that the visa applicant can only open a bank account for local currency because she is a pensioner. She had asked the visa applicant to find out what account she could establish. Last year they investigated the matter on a visit to Russia and "could not find anything". They try to send money to the visa applicant yearly and have provided statutory declarations. The persons who took the money had to go to the bank to change the currency into roubles. The review applicant indicated that she was unable to send money in any other way from Australia to her mother in Russia.

The review applicant stated that she assisted her mother and stepfather even when they were living together. During her marriage, the visa applicant's income was larger because her husband received money as a war veteran in addition to his pension. Since the visa applicant's divorce her income has decreased by two thirds. During her marriage, the joint income of the visa applicant and her husband covered basic needs. The visa applicant became wholly and substantially dependent on the review applicant for basic needs in April 1998 when she separated from her husband.

The visa applicant is a retired engineer. In 1998 the visa applicant needed 2500 to 3000 roubles a month to survive. She could not recall what the visa applicant's pension was at the time. In 1999 the visa applicant needed approximately the same amount of money and her pension was approximately 1500 to 1800 roubles a month. She stated that the poverty line was 3000 roubles. Mr Berner stated that from 1997 to 1999, owing to currency reforms, money lost its value. The review applicant stated that the visa applicant needed the same amount to survive in 2000 and that her pension in 2000 was 1500 to 1800 roubles.

The review applicant stated that she sent AUD$2000 yearly to the visa applicant through persons visiting Russia. She also sent parcels with sugar, pasta, underwear and clothing.

The Tribunal referred to information from a web site (which had previously been disclosed to the review applicant pursuant to section 359A of the Act) that as at December 2001, the majority of people in Russia have income of less than $50 a month (which was less than the visa applicant's pension). The review applicant stated that many people have children and other relatives and that the visa applicant is on her own. Mr Berner indicated that the subsistence level changes from year-to-year.

The review applicant stated that at the time of application the visa applicant's income was 1100 roubles, the cost of living could change several times a year and the pension did not keep pace with the changes in prices.

She indicated that the visa applicant's pension does not cover her basic needs for food and clothing or even most of these needs (the visa applicant has her own accommodation). She stated that the visa applicant has to pay a "maintenance fee" which is 25 percent of her income and that she also has to pay the bills. Accordingly she has basically nothing left for food, apart from bread and water.

Regarding why the visa applicant's former husband remains registered at her address, the review applicant stated that the visa applicant's former husband owns one third of the flat and has a legal right to be registered there. Every resident of Moscow has to be registered at the police office. She did not know where her stepfather was living. In order to be registered at an address, the consent of the owner is required and the review applicant surmised that the partner of her stepfather is not willing to allow him to register at her address. She stated that to live in Moscow, where her stepfather had friends and healthcare entitlements, he had to remain registered in Moscow. The visa applicant was afraid to contact her former husband regarding this matter, in case he demanded the sale of the flat. She stated that the visa applicant has been living on her own since April 1998. She had no contact with her former husband until May 2000, when she first met him again and asked him to organise the divorce.

The visa applicant's flat is owned by her former husband, the visa applicant and the review applicant. Her mother made a mistake in telling the delegate that the flat belonged to the review applicant alone. (The review applicant referred to her own copy of the Department's file).

Currently the visa applicant requires 3000 roubles a month for basic necessities. This amount would be insufficient to cover any emergencies. The visa applicant "restricts herself" and has not been to the hairdresser for 10 years.

Regarding the amount of support she has been providing to the visa applicant since the time of application, the review applicant stated that she sends $2000 a year through visitors. She also sent parcels of food and underwear every three months.

Regarding the address of the visa applicant, the review applicant denied that this property was in an elite area and had value. She stated that the building was old, had a lift and was close to the railway station. She stated that there were no wealthy people in Russia. She disputed that this was a wealthy area and stated that she would describe it as a convenient area. She stated that the flat had a value of approximately AUD $10,000 and that the visa applicant's one third share was insufficient to buy another one bedroom flat, as the minimum cost of a one-bedroom flat is AUD$10,000 dollars.

The visa applicant gave evidence that her pension was 400 roubles in 1998, and that this was insufficient to buy food and pay rent. She did not have enough money to buy food. Prior to her husband leaving her in 1998, they had enough money because they had two types of pensions. In 1998 she needed one and a half to two times the amount of her pension for a "normal life". She stated that 800 roubles would have covered her food, clothing, bills, rent and medical services. In 1999 her pension was 500 roubles a month, and she needed 800 to 1000 roubles to meet her basic needs. Her pension had not kept pace with the cost of living. In 2000 her pension was 850 roubles and she required 1300 roubles to live modestly. To have normal life she required 2500 to 2700 roubles. She stated that modest living meant restrictions in buying food, laundry products, visiting the hairdresser, and paying for dry-cleaning.

She stated that she became dependent on her daughter for basic needs in 1998 after separating from her husband. Before that she lived a normal life because of his income.

The Tribunal asked the visa applicant to provide details of the support provided by her daughter since 1998. She stated that her daughter's sent her parcels with sugar, milk, biscuits, pasta, underwear and clothing. The Tribunal asked again about the support provided and the visa applicant stated that when the review applicant visited in 2003, they bought her a washing machine, vacuum and television for 14,000 roubles. The Tribunal again asked about this matter and the visa applicant stated that the review applicant took every opportunity to send money to her through people in 1997, 1999, 2000, and 2001.

Regarding the absence of the regular pattern of support to meet her basic needs, the visa applicant stated that she did not have a foreign currency bank account because she did not have a foreign passport. She did not have an ordinary bank account because her pension was delivered to her flat in cash. She stated that she could not open a bank account as the only source of her income was a pension.

The visa applicant stated that currently she cannot survive on her pension which is 2700 roubles and that she is dependent on her son-in-law and daughter. She does not spend all the money that they provide and accordingly has a surplus for emergencies. She stated that there was a 1.5 percent increase in the price of food recently and a 0.7 percent price increase for non food items. Rent increased in January as did telephone and electricity expenses. She requires 4000 to 5000 roubles a month to live a normal life. She spends 3500 roubles a month for food. She only wears clothes provided by her daughter. Additional expenditure is incurred on washing powder and she has to pay 25 percent of her pension for rent.

She stated that when the flat was privatised, her former husband, the review applicant and her each had ownership of a one third share. The Tribunal asked the visa applicant if her property was situated in an elite area and had value. She stated that she had never requested a valuation because she did not consider selling. However she has a document from the Housing Stock Registration Department indicating a valuation of 212,000 roubles. The building is old and noisy. She would be unable to relocate out of Moscow, as her former husband would not consent to the sale. Her former husband had not sought to realise his equity in the property after their separation in 1998. She stated that he may not have another address to register at and would not be able to cancel his registration without losing entitlements.

At the time the visa application was lodged Other Family (Migrant) (Class BO) contained the following subclasses: Subclass 114 (Aged Dependent Relative), 115 (Remaining Relative) and 116 (Carer). The only subclass in respect of which any claims have been advanced is subclass 114 (Aged Dependent Relative). There is no evidence to suggest that the visa applicant meets key criteria for any of the other subclasses.

A necessary primary criterion for a subclass 114 (Aged Dependent Relative) visa is stated in Regulation 114.211 as follows:

The applicant is an aged dependent relative of a person who is:

(a) an Australian citizen; or

(b) an Australian permanent resident; or

(c) an eligible New Zealand citizen.

An 'aged dependent relative' is defined in Regulation 1.03 as follows:

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) has never married, or is widowed, divorced or formally separated from his or her spouse; 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;

'Dependent' is defined in Regulation 1.05A as follows:

(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.

Regulation 114. 221 requires the applicant to continue to satisfy the criterion in Regulation 114.211 at the time of decision.

The delegate found that the visa applicant was residing in her own apartment in Moscow, was receiving a monthly pension of 1600 roubles which was the primary source of her financial support, and was not wholly or substantially reliant on the review applicant to meet her basic needs of food, clothing and shelter.

The Tribunal considers that where it is submitted that a person has been wholly or substantially reliant on another person for financial support to meet basic needs for food clothing and shelter, one would reasonably expect a regular pattern of support given the nature of the needs. The Tribunal notes that there is no regular pattern of financial support. The only evidence submitted to date consists of statutory declarations regarding monies stated to be taken to Russia on one occasion in 1997, one occasion in 1999 and one occasion in 2000. There has been no corroboration of this such as the provision of bank statements of the review applicant and her husband showing the withdrawal of these funds. No independent evidence has been submitted regarding the remittance of funds from Australia after the time of application. The Tribunal does not accept that it has not been possible to remit funds from Australia to the visa applicant on a regular basis to meet her needs through agencies such as Western Union. While the review applicant claimed that she sent parcels to her mother of food and clothing every three months, no receipts from the post office have been submitted to corroborate this. While the Tribunal accepts that the review applicant may have on occasions provided funds or in kind support, the Tribunal is not satisfied on the evidence that the visa applicant was wholly or substantially dependent on the review applicant to meet her basic needs for a substantial period of time immediately before the time of application or time of decision.

The visa applicant does not meet Regulation 114.211 and Regulation 114.221.

Given the findings made above, the Tribunal has no alternative but to affirm the decision under review.

The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of an Other Family (Migrant) (Class BO) visa.