Chen, Lan Hua [2003] MRTA 4194 (24 June 2003)

As the applicant is getting older each year, she becomes more dependent on her son. As soon has her son was able to nominator her for a visit, he invited his mother to join him. The mother eventually arrived in Melbourne in July 1998. To enable his mother to visit Australia, the nominator paid air travel expenses and all living expenses for the applicant in Australia. Since the applicant came to Australia, she has been living with her son and his family since 1998 and all of her living expenses is paid for by the nominator.

The applicant has three children, apart from the nominator, she has two other sons, the oldest one Mr Jian Hua Chen, 44 years old and the second son Mr Jian Min Chen, 42 years old. They all have their own difficulties and could not provide any substantial assistance either emotionally or financially to their mother due to a number of reasons.

Mr Jian Hua Chen is now unemployed with very little income (as a result of poor profit of his employer due to China's state enterprise reform.) It is worthwhile to mention that in China, the employer, not the government, provides pension and the amount of pension is depending upon the financial performance of the employer.

Mr Jian Min Chen was unemployed for many years and around two years ago he went to Vanuatu as a volunteer. He has not returned to China since and he had very little income and is unable to support his mother.

16. The Tribunal convened a hearing on 6 June 2003 at which the applicant, the nominator and the nominator's wife, Ms Hai Ping TIAN gave evidence.

17. The applicant stated that she lived with the nominator and his wife. The applicant stated that they were still married, despite the nominator's wife being listed as his ex-wife on the Hearing Seating Plan. She also had two grandchildren in Australia. One of her sons was currently residing in Vanuatu. He had previously resided in Sri Lanka. Her other son was in China and was married with one child. He lived in the same city as she did, but was living with his work unit. The Tribunal noted that previous submissions had indicated that the applicant's son in China was unemployed. The applicant stated that her son was unemployed but his wife was employed as an accountant.

18. The applicant stated that she had arrived in Australia on 20 July 1998. She had come to Australia because her daughter-in-law was having a baby. The applicant had been living with her daughter-in-law since the death of the applicant's husband in 1991, until her daughter-in-law migrated to Australia in 1997. The applicant stated that she also had a small pension and her husband had left her some money. The house in which they had lived had belonged to the applicant but it was about to be demolished and if she returned to China she would have nowhere to live.

19. The applicant stated that the nominator contacted her once or twice per month. She sometimes telephoned him. They wrote to each other a few times per year but the applicant did not keep the letters. They would talk about what had been happening.

20. The Tribunal asked how the applicant had supported herself financially prior to 1995. The applicant stated that her daughter-in-law had an income and the nominator had sent money to the applicant. He had sent the money to his wife when the applicant was living with her and afterwards had sent it to the visa applicant. He would send money once per year. Before 1995 the applicant stated that she did not need money. The nominator's wife was a teacher and had an income and her husband had left her some money. The applicant stated that she did not know if the nominator had sent money prior to 1995. In 1995 a friend had brought $7000 to China. In 1996 the nominator had brought $8000 when he had visited China. In 1997 he had brought $13000.

21. The applicant stated that the nominator and his wife had become worried about her when she was living alone in China and asked her to come to Australia. When the nominator came to China in 1996 he had talked to her about joining the family in Australia so that he would not be worried about her. The applicant stated that she had decided to come to Australia a month before she arrived. The Tribunal asked why the nominator would send her $15000 if she was thinking about coming to Australia. The applicant stated that she had told the nominator that she did not have enough money and she had to pay off debts.

22. The nominator stated that he and his wife were separated. He lived in a unit and his wife remained in the matrimonial home. The nominator stated that the applicant lived with him, but stayed with his ex-wife most of the time because she cared for the children.

23. The nominator stated that he had come to Australia in 1989 as a student. For the first two years he had worked at a factory. Before he arrived he had paid the first 6 months tuition fees. He worked night shifts at a factory to support himself after that time. The nominator stated that he finished his studies in 1991 with no debts remaining. He then took up full time employment at the factory. The nominator stated that he continued working until 1993 when he took four months' break. He took a position as a car salesman in October 1995 where he earned approximately $500 to $600 per week after tax. The Tribunal noted that his tax return from that year indicated that he had earned only $14092, however if the nominator had been earning the amount he stated his tax assessment should be closer to $40 000. The nominator stated that his assessment income was lower because he had not begun working until October. His retainer as a salesman had been $430 per week before tax and if he did not sell any cars he did not receive any commission.

24. In 1996/1997 he was studying hospitality at TAFE and his tax assessment represented his Austudy payments.

25. The nominator stated that his wife had migrated to Australia in March 1997. When his wife arrived in Australia with their daughter, they had rented a unit for $110 per week. His wife had some casual work but had been undertaking home duties when she arrived in Australia. In China his wife had been employed as a high school teacher. Prior to her arrival in Australia, he had sent money to his wife which she had shared with the applicant.

26. In 1991 the nominator stated that he had sent $4000 through a friend who lived in Hong Kong. In 1992 he had sent $2000 through the same friend. In 1993 he had sent $3000 with a friend from Australia. In 1994 he did not send any money because he was not working and there was no convenient means to send the money. He had also thought that he might need his savings.

27. The Tribunal queried how the nominator had managed to send $10000 in 1995 when he had earned only $13186. The nominator stated that he had saved this amount in the previous years. As a student in Australia he had only spent $25 per week on rent, $20 per week on food and with other expenses had spent only $100 per week. He had sent the money for the applicant's care to his wife because the applicant had been living with his wife.

28. One year after his wife had arrived in Australia the nominator stated that they had invited the applicant to live with them in Australia because she had been living in China alone. The nominator's brother in China was unemployed with no steady income. Although his wife had a job this was not enough for the nominator's brother to support the applicant.

29. The Tribunal asked why the nominator would send $15000 to the applicant in March 1998 when they planned for her to join them in Australia. The nominator stated that the applicant had been required to provide evidence of sufficient funds to support her stay when she had applied for a visitor visa. The money had been sent in order to ensure that the visa was issued smoothly. The money had been spent on the applicant's travel and the applicant wanted to give some money to the nominator's brothers.

30. The Tribunal queried which telephone number belonged to the applicant. The nominator stated that one telephone number had belonged to his brother when he had been living with the applicant in 1992 or 1993. One number belonged to the applicant on the first floor of the apartment building. Another number belonged to the nominator's brother when he had moved to an apartment approximately 10 minutes walk from the applicant's apartment. The Tribunal noted that the majority of the calls to China appeared to represent calls made to the nominator's brother rather than to the applicant or the nominator's wife. The nominator stated that he had needed to ask his brother about the applicant's health.

31. Ms Tian stated that the applicant lived with the nominator. She and the nominator had divorced in September 2001 but the applicant came to Ms Tian's house to look after her children. Ms Tian stated that before she came to Australia she had lived with the applicant and her daughter. She had earned money from teaching at High School and from tutoring students on the weekends. Her husband had sent her approximately $US200 per month in an envelope. Once he had asked a friend to bring them money. When the nominator came back to China to visit for the first time he had brought approximately $8000. Ms Tian stated that she had come to Australia in 1997. In 1997 the nominator had returned to China and taken $10 000 for the applicant. In 1998 the applicant needed money to fix the house and their father's grave. Her other two sons also needed money. Ms Tian and the nominator had sent money through the Bank of China.

32. The Tribunal asked the applicant why she had stated that she was living with Ms Tian and the nominator when they had stated that they separated in 2001. The applicant stated that she did not approve of the separation because she liked Ms Tian.

33. The Tribunal noted that the nominator had not mentioned sending monthly amounts of money to Ms Tian. The nominator stated that he had forgotten to mention these amounts. In 1990 he had sent $4000 to China in order to repay money he had borrowed to finance his studies. The Tribunal noted that the nominator had stated that he did not have any debts from his studies. The nominator stated that this was incorrect. All of the amounts he had sent in 1995, 1996 and 1997 were from his savings. He was able to save large amounts of money from living cheaply in Australia. The applicant had been caring for his son since he was born. He was now 4½ years old and would be disappointed if the applicant were to receive a negative decision.

34. The applicant's representative submitted that the minor discrepancies in the amounts which had been sent could be explained by the passage of time. The question was whether there had been financial support provided to the applicant by the nominator. The representative provided untranslated telephone accounts purporting to represent telephone calls made by the applicant to the nominator in the relevant period.

35. At the time the visa application was lodged, Family (Residence) (Class AO) contained the following subclasses: Subclass 831 (Prospective Marriage Spouse), subclass 802 (Child), subclass 804 (Aged Parent), subclass 806 (Family) and subclass 832 (Close Ties). The only subclass in respect of which any claims have been advanced is subclass 806 (Family).

36. A criterion to be satisfied at the time of application for the grant of a subclass 806 visa is clause 806.213, which provides in part, that the visa applicant is an `aged dependent relative' of another person who has nominated the applicant for the grant of the visa. An applicant must also meet clause 806.221. This requires that the applicant continues to meet clause 806.213 at the time of decision.

37. `Aged dependent relative' is defined in regulation 1.03 as 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.

38. The visa applicant was born in 1936 and at the time of application, she was aged 62. The qualifying age for an age pension for a female born before 1 July 1936 is 60. The visa applicant, therefore, meets subregulation (c) of the definition of aged dependent relative in regulation 1.03 as stated above. However she must also meet paragraphs (a) and (b) of that definition.

39. Clause (b) of the definition requires that the visa applicant has been dependent on the nominator for a "reasonable period", and remains so dependent. At the time of application, for the purposes of paragraph (b), the definition of `dependent' is also found in regulation 1.03. This definition has subsequently changed (see item [2106] of Statutory Rules 259 of 1999 (SR 259 of 1999) which introduced regulation 1.05A with a new definition of `dependent') however in accordance with paragraph 5(1)(a) of SR 259 of 1999 this amendment applied only to applications made on or after 1 November 1999 and it will be the definition of dependent as it stood at the date of application which will apply in this case:

in relation to a person, means wholly or substantially dependent on another person for financial, psychological or physical support;

40. Whether a person is "dependent" on another is a question of fact to be considered in the light of all the relevant circumstances of each case: Minister for Immigration and Multicultural Affairs v Graovac [1999] FCA 1690 (16 December 1999). In Minister for Immigration and Multicultural Affairs v Pires (1998) 160 ALR 97, Mansfield J found that it was possible to resume dependency after a period of being independent. In Graovac v Minister for Immigration and Multicultural Affairs [1999] FCA 537 (30 April 1999) the Minister's delegate refused a claim of dependence based on the Departmental policy of dependence only relating to the "lower order needs of life". Madgwick J found that the Departmental policy was contrary to law and stated:

"A broad, practical judgment is required, neither niggardly nor over-generous. The legislation is not a charter for raising the standard of living of all close relatives of Australian permanent residents to that prevailing in Australia by allowing them to come here. Neither is it intended to condemn such relatives to little more than the mere maintenance of life in circumstances which, viewed fairly and humanely, are miserable by the standards prevailing in their present countries of residence. It is erroneous to limit this process of evaluation by concentration merely on "lower order needs" or, as earlier indicated, the source of predominant means of support of the applicant."

41. The Full Federal Court in Minister for Immigration and Multicultural Affairs v Graovac [1999] FCA 1690 (16 December 1999) dismissed the Minister's appeal. Whilst not adopting all of the reasoning of Madgwick J, the Full Court rejected the mathematical approach taken by the delegate stating:

"it is erroneous to limit the issue of substantial dependency to a mere comparison of the monetary value of the respective contributions to the support of the respondents...."

42. On the meaning of the phrase "wholly or substantially" in regulation 1.03, the Tribunal notes the Federal Court's findings in Commissioner of Superannuation v Scott (1987) 12 ALD 38 that " `Substantially' must be considered alongside `wholly' in the context of the circumstances of the case. It must not be considered in isolation. ...the word `substantially connotes `in the main' and `essentially'. ...The dictionary meaning of the word `substantial' being ample, material and considerable would lend support to this construction".

43. For the purposes of paragraph (b) it is also necessary for the visa applicant to have been dependent on the nominator for a `reasonable period' which is defined in Departmental policy as follows:

1. 'Reasonable period' (of dependency) is not defined in migration law. Under policy specific to this provision, a reasonable period is taken to be three years.

2. It is always open for officers to decide that dependency has existed for a 'reasonable period', being less than three years, if otherwise satisfied that the applicant has received from the Australian relative ongoing support (consistent with the policy guidelines above on dependency).

The visa applicant came to Australia on 20 July 1998, three months prior to lodging the current application. The Tribunal is satisfied that the visa applicant was living with the nominator from her arrival in Australia until the date of application (although it is now unclear whether she resides with the nominator or Ms Tian since their separation) and the Tribunal accepts that she was dependent on the nominator and Ms Tian for the three months prior to the lodgement of the current application.

44. Policy states that a reasonable period for the purpose of paragraph (b) of the definition of an aged dependent relative is taken to be three years. The Tribunal is mindful of the fact that Departmental policy is not binding on the Tribunal. The Tribunal has noted the comments of Brennan, J. in Re: Drake with respect to the precise part which government policy should ordinarily play in the determinations of the Tribunal. His Honour's view was to the effect that it is a matter for the Tribunal itself to determine the part which policy plays in the context of the particular case and in the light of the need for compromise, in the interests of good government, between, on the one hand, the desirability of consistency in the treatment of citizens under the law and, on the other hand, the ideal of justice in the individual case. Further, His Honour was of the view that there are powerful considerations in favour of a Minister adopting a guiding policy, among other considerations, because adoption of a policy diminishes inconsistencies in decision-making which might otherwise appear. In this case, the Tribunal considers that there are no circumstances to warrant a reasonable period of three years stated in policy being shortened to three months. Therefore the Tribunal must be satisfied that the visa applicant was dependent on the nominator before she came to Australia.

45. On this point, the Tribunal found the visa applicant and nominator to be unsatisfactory witnesses. There is no independent evidence in relation to any financial support provided by the nominator to the applicant until 1998 when $15000 was sent to the applicant through a bank transfer three months prior to the applicant travelling to Australia.

46. The nominator stated that he had sent $4000 in 1991, $2000 in 1992, $3000 in 1993 and no money in 1994 because he thought that he might need his savings. However Ms Tian stated that the nominator had been sending $US200 per month prior to 1995 (approximately $AUD3600 per year). At a later time in the hearing, the nominator also stated that he had sent $4000 to China in 1990 in order to repay debts from his studies. The Tribunal finds that these inconsistency indicate that the nominator was attempting to undercalculate the sums of money sent to Ms Tian prior to 1995 in order to support his claim that he had saved the money which he had claimed to have provided after 1995. The Tribunal is not satisfied that this was the case.

47. The applicant stated that she had not needed money from the nominator up until 1995 because she had money which was left to her by her husband and received a small pension. However, the amounts which were sent to Ms Tian prior to 1995 are relevant to the amounts which the nominator would be able to provide after 1995, that is, in the relevant 3 year period prior to the lodgement of the application.

48. If the sums provided to Ms Tian are accurate the nominator sent $7600 in 1990, $5600 in 1991 (earning $15783 net in 1990/91), $5600 in 1992 (earning $18027 net in 1991/92), $6600 in 1993 (earning $18647 in 1992/93) and was not working for a period in 1994, whilst still supporting himself in Australia. At the hearing, the nominator claimed that his annual expenses were not more than $5200 during this period. Even if this is the case, the Tribunal considers that it was not possible for the nominator to have saved more than $10 000 during this period, also allowing for the period in which he stated that he did not work in 1994.

49. In his statutory declarations, the nominator stated that he had sent $7000 to the applicant in 1995 through a friend (earning $11629 net in 1994/1995). He stated that in 1996 he had given her $8000 (earning $12 354 net in 1995/96) and in 1997 he had given her $10000 (earning $10524 net in 1996/97). (At the hearing the nominator stated that this money had in fact been sent to his wife because she and the applicant resided together.) Additionally the nominator's wife and daughter arrived at the beginning of 1997 at which time the nominator's rental payments were $110 per week and he was also supporting his family.

50. In light of the above, and in light of the only firm evidence as to the provision of funds being that the amount of $15000 had been sent by the nominator to the applicant in March 1998, the Tribunal does not accept that it was possible for the nominator to save or to send the claimed amounts of money to the applicant in the relevant three year period. Additionally, the Tribunal does not accept that even that amount of $15000 was sent to the applicant for her support, considering the nominator's evidence that the money was intended to ease the applicant's visitor visa application and the evidence of Ms Tian that the bulk of the money was used to renovate the house and given to the nominator's brothers. The applicant stated that she received her own pension and resided with Ms Tian prior to her arrival in Australia. Without any supporting financial documentation to support their claims, and in light of the Tribunal's findings as to the credibility of the visa applicant and the nominator, the Tribunal is not satisfied that the visa applicant was wholly or substantially reliant on the nominator for financial support during the three year period prior to the application being lodged.

51. In relation to psychological support at the time of application, the visa applicant gave evidence that she and the nominator spoke once or twice per month by telephone before the visa applicant came to Australia. However the telephone accounts provided to the Tribunal by the nominator highlight three different numbers in China and the nominator's evidence in relation to these telephone numbers was vague. The nominator had been absent from Australia since 1989 and his father died in 1991. In light of the fact that the applicant did not arrive in Australia until 1998 and that the applicant only visited her twice prior to that time, the Tribunal is not satisfied that the visa applicant was wholly or substantially reliant on the nominator for psychological support during the three year period prior to the application being lodged.

52. In relation to physical support at the time of application, the visa applicant was living in China in her own apartment up until less than three months prior to the application being lodged. The nominator was living in Australia. The Tribunal is not satisfied that the visa applicant was wholly or substantially reliant on the nominator for physical support during the three year period prior to the application being lodged.

53. The Tribunal is not satisfied that the visa applicant was wholly or substantially dependent on the nominator for financial, psychological or physical support for even a year prior to the application being made. At most the visa applicant was dependent on the nominator for the three months prior to the application, however the Tribunal is not satisfied that this period is sufficient to constitute a reasonable period. Therefore the visa applicant does not satisfy the definition of an aged dependent relative at the time of application.

54. Provision is also made in clauses 806.213 and 806.221 for these criteria to be satisfied on the basis of being a special need relative, orphan relative or remaining relative. As the visa applicant was not under 18 at the time of application, she does not meet the definition of an orphan relative at the time of application. The visa applicant has a son in China and so does not meet the definition of a remaining relative at the time of application. There is no evidence that there was a person requiring assistance for any of the grounds enumerated in the definition of a special need relative at the time of application, therefore the visa applicant does not meet that definition. Therefore the visa applicant does not meet clause 806.213 at the time of application and does not meet the criteria for a subclass 806 visa.

55. In relation to the other visa subclass which are available, the visa applicant has never held a subclass 300 visa and does not meet the requirements for a subclass 831 visa. She is nominated by her son and does not meet the requirements for a subclass 802 visa. She has a son in China, a son in Vanuatu and a son in Australia and does not meet the balance of family test and so does not meet the requirements for a subclass 804 visa. She did not cease to hold a substantive visa before turning 18 and does not satisfy the requirements for a subclass 832 visa.

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

57. The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Family (Residence) (Class AO) visa.