BUI (Migration)

[2017] AATA 1201

BUI (Migration) [2017] AATA 1201 (19 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Ngoc Huynh Bui

CASE NUMBER:  1604873

DIBP REFERENCE(S):  CLF2015/74902

MEMBER:Nicholas McGowan

DATE:July 19, 2017

PLACE OF DECISION:  Sydney

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, and;

·cl.838.221 of Schedule 2 to the Regulation.

Statement made on 19 July 2017 at 10:21am

CATCHWORDS

Migration – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – Relationship to sponsor – Relationship confirmed with DNA test – Substantially reliant on sponsor – Aged dependent relative of an Australian relative

LEGISLATION

Migration Act 1958

Migration Regulations 1994, Schedule 2, r 1.03(b), r 1.05A(1)(a)(i), r 1.05A(1)(a)(ii), cl 838.212, cl 838.213(a), cl 838.221

APPLICATION FOR REVIEW - STATEMENT OF DECISION AND REASONS

1.     The applicant applied for the visa on 27 November 2015. The Minister’s delegate refused the application on 31 March 2016. The applicant appealed that decision to this Tribunal on 9 April 2016. The issue in the case is whether the applicant meets Regulation 1.03(b). The Tribunal conducted two hearings with the applicant, her sponsor (the applicant’s son), and several witnesses including the applicant’s daughter. Each provided oral evidence which without exception was candid and therefore deemed reliable. The Tribunal also had regard to all the evidence on file(s) including those contained in the Department’s file.

2. The Tribunal discussed with the witnesses (and applicant directly) the circumstances of the applicant prior to her coming to Australia and since, and the extent to which the applicant has relied upon her sponsor (and any other source) for a substantial period of time prior to her application, for financial support to meet her food, clothing and shelter needs. The Tribunal also examined the applicant’s submission, provided after the second hearing which is instructive because it outlines the support her sponsor claims to have provided through his sister, and other means, including himself directly. Ultimately, the Tribunal was satisfied that the applicant was at time of application, and had been for a substantial period immediately before that time, substantially reliant on her sponsor for financial support to meet her food, clothing and shelter: r.1.05A(1)(a)(i), and that the applicant’s reliance on the sponsor for financial support is greater than the reliance on any other person, or source, to meet her basic needs for food, clothing and shelter: r.1.05A(1)(a)(ii).

3. In regards to proof of relationship between the applicant and her sponsor, which was an issue the Minister’s delegate examined, the Tribunal requested DNA to settle the matter: clause 838.213(a). On January 4, 2017 the DNA results were received by the Tribunal (folios 89-91) which states Ngoc Huynh Bui is the genetic mother of Loc Van Le by relative chance of maternity of 99.996%:

4.     Having had regard to all the evidence, the Tribunal was satisfied that the applicant meets regulation 1.05A(1)(a)(i), and regulation 1.05A(1)(a)(ii). Accordingly, the Tribunal is satisfied that the applicant meets regulation 1.05A, and therefore meets regulation 1.03(b) at the time of application and the time of decision as the applicant was dependent on the sponsor for a reasonable period, and remains so dependent

5. 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 the time of decision for the purposes of cl.838.212 and cl.838.221.

6.     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.

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