Gadiane (Migration) - [2020] AATA 5393

Gadiane (Migration) [2020] AATA 5393 (20 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Trinidad Gadiane
CASE NUMBER:  1810644
DIBP REFERENCE(S):  CLF2017/5092
MEMBER:Helena Claringbold
DATE:20 December 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 20 December 2020 at 11:17am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – dependent on sponsor for substantial period before decision – applicant’s salary and pension from home country insufficient – sponsor’s financial and other support for applicant and mother in home country and applicant in Australia – little independent evidence to support claims – decision under review affirmed
LEGISLATION
Migration Regulations 1994 (Cth), rr 1.03(b), 1.05A(1)(a), Schedule 2, cls 838.111, 838.212, 838.221
CASES
Huang v MIMIA [2007] FMCA 720
Huynh v MIMA [2006] FCAFC 122
Huynh v MIMIA (2006) 152 FCR 576
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 3 January 2017, Ms Trinidad Gadiane, the applicant applied for an, Other Family (Residence) (Class BU) visa. The application was made on the basis that she is an aged dependent relative of Ms Elvira Elnas Bruce, the sponsor.
On 27 March 2018, a delegate of the Minister for Immigration refused to grant the visa. The delegate was not satisfied the applicant falls within the definition of an aged dependent relative. Therefore, the applicant did not meet cl.838.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958. On 16 April 2018, the applicant provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision.
On 2 November 2020, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was adjourned due to difficulties with the interpreting services. A Tribunal hearing set down for 30 November 2020 was cancelled because of difficulties obtaining the services of an interpreter in the Cebuano and English languages. On 1 December 2020, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Cebuano 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 the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration, individually and completely, all the evidence in the Department of Immigration’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.
ISSUE
The issue in the present case is whether, at the time of application, the applicant was the aged dependent relative of the sponsor.
BACKGROUND ON THE EVIDENCE
The applicant was born in 1942 in Sampaloc, Manila, Philippines. Her parents and three siblings are deceased. Her other siblings are a brother…

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 Gadiane (Migration)

Details

AGLC: Gadiane (Migration) [2020] AATA 5393
Case: [2020] AATA 5393
Decision Date: 20 December 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered whether the applicant, born in 1942 in the Philippines, qualified as an aged dependent relative of her sister, the sponsor, who was an Australian citizen. The applicant sought an Other Family (Residence) (Class BU) visa, Subclass 838 (Aged Dependent Relative). The core dispute revolved around whether the applicant had been, and continued to be, dependent on the sponsor for a substantial period prior to the application, as required by the Migration Regulations.

The Tribunal was required to determine if the applicant met the definition of an "aged dependent relative" under regulation 1.03 of the Migration Regulations. This involved assessing whether the applicant was a relative of the sponsor, lacked a spouse or de facto partner, was of an age to receive an aged pension, and crucially, had been dependent on the sponsor for a reasonable period and remained so dependent at the time of the application and decision. The definition of "dependent" in regulation 1.05A stipulated that the applicant must be wholly or substantially reliant on the sponsor for financial support to meet basic needs, and this reliance must be greater than reliance on any other person or source.

The Tribunal reasoned that while the sponsor provided financial and other support to the applicant and her mother in the Philippines, and later to the applicant in Australia, there was insufficient independent evidence to substantiate the claims of substantial dependence. The applicant's own salary and pension from her home country were considered, and the Tribunal found that her reliance on the sponsor was not demonstrably greater than her reliance on other sources of support. The Tribunal noted that the concept of dependence under regulation 1.05A did not imply necessity or lack of choice, but rather a factual reliance.

Ultimately, the Tribunal affirmed the decision not to grant the applicant the Subclass 838 visa, concluding that the applicant did not meet the prescribed criteria for this visa subclass. No material was presented to suggest the applicant met the criteria for any other visa subclasses.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issue in the present case is whether, at the time of application, the applicant was the aged dependent relative of the sponsor. BACKGROUND ON THE EVIDENCE The applicant was born in 1942 in Sampaloc, Manila, Philippines. Her parents and three siblings are deceased. Her other siblings are a brother who lives in the Philippines with his wife and children and the sponsor who lives in Australia. The applicant did not declare any partner relationships. The sponsor was born in the Philippines. On 5 September 1991, she became an Australian citizen by grant. 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.…r.1.03(b) requires that at the time of application, the applicant must demonstrate she has been dependent on the sponsor for a reasonable period and remains dependent. The term ‘dependent’ is defined in r.1.05A. It requires that at the relevant time, and for a substantial period immediately before that time, the person who is claiming to be dependent (the ‘first person’) must be wholly or substantially reliant on the other person for financial support to meet their basic needs for food, clothing and shelter. Further, the first person’s reliance on the other person must be greater than their reliance on any other person or source of financial support to meet those basic needs: r.1.05A(1)(a)(i) and (ii). Alternatively, the first person must be wholly or substantially reliant on the other person for financial support because they are incapacitated for work due to the total or partial loss of their bodily or mental functions: r.1.05A(1)(b). Relevantly, the terms of r.1.05A(1) do not carry with them any implication of necessity or lack of choice. For the purposes of this application, reference to a ‘substantial period’ in r.1.05A means a period not more substantial than a ‘reasonable period’: Huang v MIMIA [2007] FMCA 720 at [47]. Further, the proper construction of ‘dependent’ in r.1.05A does not carry any implication of the notion of necessity or lack of choice r.1.05A. Huynh v MIMA [2006] FCAFC 122 at [44]. The question is whether as a matter of fact, the first person is relying on the other person for support: Huynh v MIMIA (2006) 152 FCR 576 at [43]. Although the Tribunal is not bound by policy, the Procedures Advice Manual 3 (PAM 3), the Tribunal understands that the delegate interpreted a ‘reasonable period’ immediately prior to the applicant’s visa application to be a three-year period (as per Departmental guidelines (PAM3)). The Tribunal recognises that this is one interpretation of the term ‘substantial period’ but also notes the decision of the Full Court in Huang v MIMIA [2007] FMCA 720 at [47] and its interpretation of a ‘substantial period’ of being not more substantial than a ‘reasonable period.’

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal has taken into consideration, individually and completely, all the evidence in the Department of Immigration’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing. ISSUE The issue in the present case is whether, at the time of application, the applicant was the aged dependent relative of the sponsor. BACKGROUND ON THE EVIDENCE The applicant was born in 1942 in Sampaloc, Manila, Philippines. Her parents and three siblings are deceased. Her other siblings are a brother who lives in the Philippines with his wife and children and the sponsor who lives in Australia. The applicant did not declare any partner relationships. The sponsor was born in the Philippines. On 5 September 1991, she became an Australian citizen by grant. 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.…r.1.03(b) requires that at the time of application, the applicant must demonstrate she has been dependent on the sponsor for a reasonable period and remains dependent. The term ‘dependent’ is defined in r.1.05A. It requires that at the relevant time, and for a substantial period immediately before that time, the person who is claiming to be dependent (the ‘first person’) must be wholly or substantially reliant on the other person for financial support to meet their basic needs for food, clothing and shelter. Further, the first person’s reliance on the other person must be greater than their reliance on any other person or source of financial support to meet those basic needs: r.1.05A(1)(a)(i) and (ii). Alternatively, the first person must be wholly or substantially reliant on the other person for financial support because they are incapacitated for work due to the total or partial loss of their bodily or mental functions: r.1.05A(1)(b). Relevantly, the terms of r.1.05A(1) do not carry with them any implication of necessity or lack of choice. For the purposes of this application, reference to a ‘substantial period’ in r.1.05A means a period not more substantial than a ‘reasonable period’: Huang v MIMIA [2007] FMCA 720 at [47]. Further, the proper construction of ‘dependent’ in r.1.05A does not carry any implication of the notion of necessity or lack of choice r.1.05A. Huynh v MIMA [2006] FCAFC 122 at [44]. The question is whether as a matter of fact, the first person is relying on the other person for support: Huynh v MIMIA (2006) 152 FCR 576 at [43].

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 the prescribed criteria for the visa sought. DECISION The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.Helena ClaringboldMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.