Doan (Migration) - [2021] AATA 3584

Doan (Migration) [2021] AATA 3584 (31 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Thi Phuc Doan
CASE NUMBER:  1906619
HOME AFFAIRS REFERENCE(S):          CLF2017/35719
MEMBER:Mila Foster
DATE:31 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 31 August 2021 at 11:24am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – definition of ‘aged dependent relative’ is met – applicant has not been financially dependent on the sponsor as she claims – no medical evidence of diminished functioning has been provided – not meeting the relevant definition of dependence –applicant is not incapacitated– decision under review affirmed remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.05, Schedule 2, cls 838.212, 838.221

CASES
Huang v MIMIA [2007] FMCA 720
Huynh v MIMIA (2006) 152 FCR 576
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 Home Affairs on 13 March 2019 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 11 May 2017, approximately two months after arriving in Australia from Vietnam. At that time she applied for the visa, 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 (Cth) (the Regulations). Relevant to this matter, the primary criteria to be met include cl 838.212.
The delegate refused the visa on the basis that the applicant did not meet cl 838.212 because she was not wholly or substantially reliant on her sponsor to pay for her basic needs during the three year period prior to the lodgement of the visa application.
The applicant was represented by a registered migration agent in connection with her visa application and review application.
Having considered the claims and evidence, the Tribunal has concluded for the following reasons that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant claims she is the 84-year-old aged dependent relative of her granddaughter, Cam Loan Nguyen, who is an Australian citizen and her sponsor for the visa. She claims she has been wholly financially reliant upon the sponsor to meet her daily needs for food, clothing and shelter since 2009 and including the time since she arrived in Australia in March 2017.
The evidence before the Tribunal includes the Department file…

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 Doan (Migration)

Details

AGLC: Doan (Migration) [2021] AATA 3584
Case: [2021] AATA 3584
Decision Date: 31 August 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 838 (Aged Dependent Relative) visa. The applicant, Ms. Doan, claimed to be an aged dependent relative of the sponsor, her daughter, who resided in Australia. The core of the dispute revolved around whether Ms. Doan met the definition of "aged dependent relative" as required by the migration regulations.

The primary legal issue before the Tribunal was to determine if Ms. Doan had been financially dependent on the sponsor for her basic needs of food, clothing, and shelter since 2009, and if she was incapacitated. This required an assessment of the evidence presented by Ms. Doan, including her claims of financial reliance on her deceased son and subsequently on the sponsor, and the sponsor's provision of funds through money transfers and cash. The Tribunal also considered the applicant's claim regarding the rebuilding of her house in Vietnam, which she asserted was funded by the sponsor.

The Tribunal found that the applicant had not provided sufficient evidence to establish financial dependence. While money transfers were documented, the Tribunal was not satisfied that these transfers, or the cash provided by the sponsor, were consistently used to meet the applicant's basic needs to the extent required by the regulations. Furthermore, no medical evidence was presented to demonstrate that the applicant was incapacitated, a key component of the definition of an aged dependent relative. Consequently, the Tribunal concluded that Ms. Doan did not meet the relevant definition of dependence.

The Tribunal affirmed the decision not to grant the applicant the Subclass 838 visa. The Tribunal also noted that the applicant did not qualify for a Subclass 835 (Remaining Relative) visa because her near relatives resided in the same country as her.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issue in the review is whether the applicant was an ‘aged dependent relative’ at the time of application. Summary of claims and evidence The following is a summary of the claims and evidence that are relevant to the issue in the review. Visa application The applicant claimed in her visa application that she was a widow who had been dependent on the sponsor for financial support to meet her basic needs for food, clothing and shelter since 2009 when her eldest son and the sponsor’s father died. The applicant claimed she had lived with her eldest son prior to his death and she had been financially dependent upon him since she retired in 2003. She claimed she had three other children, all of whom resided in Vietnam who could not financially support her. The applicant claimed her monthly food costs were VND3,500,000 (about AUD200) and her monthly clothing costs were VND350,000 (about AUD20).[1] She claimed the sponsor provided the financial support for her basic needs by means of money transfers and cash. She claimed the sponsor brought the cash with her on visits she made to Vietnam in 2011 and 2014 and the sponsor gave her mother cash to pass on to the applicant when her mother travelled to Vietnam. The applicant claimed that at the end of 2014 the house she lived in in Long Thanh hamlet, Quon Long commune, Cho Gao district, Tien Giang province in Vietnam had to be rebuilt after the government cleared an area for an embankment. The applicant claimed the sponsor was responsible for rebuilding her house. The applicant claimed the sponsor sent a total of AUD9.731.80 via money transfers to the builder, Tran Quang Bao, and gave him cash when she visited Vietnam in 2014. The applicant claimed that since arriving in Australia, she has lived with and been financially supported by the sponsor. [1] The amounts in AUD were provided in the visa application, the amounts in VND were provided later in a document titled ‘Responses to Questionnaire for Aged Dependent Relative’ dated 12 September 2018. Documents submitted in support of the visa application included the following:a. statutory declarations made by the applicant and the sponsor on 8 May 2017, b. a Form 40 ‘Sponsorship for migration to Australia’ form completed by the sponsor, c. 14 money transfer receipts,d. a letter from the Commonwealth Bank dated 7 May 2017 which states that the sponsor had a balance of AUD48,816.68 credit in her account, and e. a record of transactions issued by the St George bank on 5 May 2017 showing transactions in the sponsor’s account from 15 March 2017 to 3 May 2017. The sponsor indicated in the Form 40 that adult family members she had in Australia who were not her dependents were her sisters Ngoc Diem Nguyen and Hieu Nghia Nguyen, her stepbrothers Thanh Dat Nguyen and Thanh Nhan Nguyen, her mother and her stepmother. The sponsor was identified on all 14 money transfer receipts as the sender of the funds. The date of the receipt, the name of the recipient/s of the money, the total amount of money remitted, and the method used to pay for the money transfers are as follows:

Decision

Reasons for decision

Further, the Tribunal finds that the applicant is not entitled to the grant of Subclass 835 (Remaining Relative) visa as the applicant’s near relatives, as defined in r.1.15(2), reside in the same country as the applicant, namely, the applicant’s three children in Vietnam. As such, the applicant is not a ‘remaining relative’ of the ‘Australian Relative’ and therefore is unable to meet cl.835.212.DECISION The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.Mila FosterMember

Ratio Decidendi

Legal Principle Established

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