1417120 (Migration) - [2016] AATA 3765

1417120 (Migration) [2016] AATA 3765 (26 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms ANNA JOSEPHINE LEE
CASE NUMBER:  1417120
DIBP REFERENCE(S):  CLF2014/18581
MEMBER:Mary Cameron
DATE:26 April 2016
PLACE OF DECISION:  Melbourne
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 26 April 2016 at 4:56pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 October 2014 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 6 February 2014. 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.
The delegate refused to grant the visa on the basis that cl.838.212 was not met because the delegate was not satisfied that the applicant was the aged dependent relative, as defined, of her sponsor.
The applicant appeared before the Tribunal on 3 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Deborah Ann Heppolette who is the applicant’s sponsor, and from Amanda Kerr and Jerome Sui Kien Lee
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa application was made on the basis that the applicant is the aged dependent relative of Deborah Ann Heppolette, who the applicant claims is their relative. Relative is also defined in r.1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or niece or nephew (or their step equivalents).
In this case Deborah Ann Heppolette is an Australian permanent resident (a copy her passport of the Republic of Singapore containing her residence visa is contained on the Departmental file, f.35) and is the applicant’s daughter.
Is the applicant an aged dependent relative of an Australian relative?
To be granted a Subclass 838 visa the applicant must be an ‘aged dependent relative’ of an Australian citizen, permanent resident or eligible New Zealand citizen (the Australian relative)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1417120 (Migration)

Details

AGLC: 1417120 (Migration) [2016] AATA 3765
Case: [2016] AATA 3765
Decision Date: 26 April 2016

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 838 (Aged Dependent Relative) visa. The applicant sought to establish that they were an aged dependent relative of Deborah Ann Heppolette, an Australian permanent resident and the applicant's daughter. The decision was made by Member Mary Cameron of the Tribunal.

The Tribunal was required to determine whether the applicant met the criteria for being an "aged dependent relative" as defined in regulation 1.03 of the Migration Regulations 1994. This involved assessing whether the applicant was a "relative" of an Australian relative, whether they had a spouse or de facto partner, and whether they were dependent on the Australian relative for financial support to meet their basic needs. The definition of "dependent" under regulation 1.05A(1) was also a key consideration.

The Tribunal found that the applicant was a "relative" of an Australian relative, as she was the daughter of Deborah Ann Heppolette. The applicant provided evidence of a divorce decree, and the Tribunal accepted that she did not have a spouse or de facto partner. Consequently, the Tribunal concluded that subparagraph (a) of the definition of "aged dependent relative" was met at both the time of application and the time of decision. However, the Tribunal did not make a final determination on the applicant's dependency on the Australian relative, as this was not fully explored in the provided text.

Given the findings made, the Tribunal remitted the application for reconsideration by the Minister. The direction was that the applicant met the criteria under clauses 838.212 and 838.221 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The visa application was made on the basis that the applicant is the aged dependent relative of Deborah Ann Heppolette, who the applicant claims is their relative. Relative is also defined in r.1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or niece or nephew (or their step equivalents). In this case Deborah Ann Heppolette is an Australian permanent resident (a copy her passport of the Republic of Singapore containing her residence visa is contained on the Departmental file, f.35) and is the applicant’s daughter.Is the applicant an aged dependent relative of an Australian relative? To be granted a Subclass 838 visa the applicant must be an ‘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. 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. The applicant has provided Certificate of Extract from the Register of Births (Singapore) (Department file, f.48) naming Deborah Anne Heppolette as her daughter. In this case, the applicant is the ‘relative’ of an Australian relative for the purposes of cl.838.212. Does the applicant have a spouse or de facto partner? The applicant’s evidence is that she is divorced from her former husband Harvey Roystein Heppolette, and remains single. She has provided a copy of a Decree Nisi Absolute issued by the High Court of Singapore dated 4 March 1995. The Tribunal accepts that the applicant does not have a spouse or de-facto partner. 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? 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).

Decision

Reasons for decision

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 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·cl838.221 of Schedule 2 to the RegulationsMary CameronMember

Ratio Decidendi

Legal Principle Established

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