DUONG (Migration) - [2020] AATA 4815

DUONG (Migration) [2020] AATA 4815 (31 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mrs Quynh Huong DUONG

CASE NUMBER:  1819564
DIBP REFERENCE(S):  CLF2016/62442
MEMBER:Kira Raif
DATE:31 August 2020
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 2020 at 9:39am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – aged dependent relative of an Australian relative – reasonable period of dependency before application – wholly or substantially reliant on the sponsor – applicant self-funded in previous Visitor visa applications – applicant sold charitable medical clinic – other sources of financial support – applicant’s condition didn’t affect her capacity to work – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2 cls 838.111, 838.212, 838.221; rr 1.03, 1.05
Social Security Act 1991
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 Immigration on 18 June 2018 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 is a national of Vietnam, born in July 1949. She applied for the visa on 7 October 2016. The delegate refused to grant the visa on the basis that cl.838.212 was not met because the delegate was not satisfied the applicant was a dependent relative of her Australian relative. The applicant seeks review of the delegate’s decision.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant appeared before the Tribunal on 27 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from several witnesses nominated by the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
Relevant law
At the time the application was made, 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…

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.

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Details

AGLC: DUONG (Migration) [2020] AATA 4815
Case: [2020] AATA 4815
Decision Date: 31 August 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by Ms. Duong for an Other Family (Residence) (Class BU) visa, specifically a Subclass 838 (Aged Dependent Relative) visa. The core of the dispute concerned whether Ms. Duong was an aged dependent relative of an Australian sponsor and whether she had been wholly or substantially reliant on that sponsor for a reasonable period before lodging her application.

The Tribunal was required to determine if Ms. Duong met the prescribed criteria for the Subclass 838 visa. This involved assessing the nature and extent of her dependency on the sponsor, particularly in light of her past financial independence, including self-funding previous visitor visa applications and selling a charitable medical clinic. The Tribunal also had to consider whether her capacity to work was affected by her medical condition.

The Tribunal found that Ms. Duong did not meet the criteria for the Subclass 838 visa. It reasoned that her past financial independence and the availability of other sources of financial support indicated she was not wholly or substantially reliant on the sponsor for the requisite period. Furthermore, the Tribunal noted that her medical condition did not impair her capacity to work, which was relevant to the dependency assessment. As no material supported her meeting the criteria for other visa subclasses, the Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons above, the Tribunal finds that the applicant does not meet the criteria for a Subclass 838 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought. DECISION The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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