Hsu Lee (Migration) - [2020] AATA 4810

Hsu Lee (Migration) [2020] AATA 4810 (3 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Hsiu-tao Hsu Lee
CASE NUMBER:  1807039
DIBP REFERENCE(S):  CLF2016/29723
MEMBER:Adrienne Millbank
DATE:3 September 2020
PLACE OF DECISION:  Brisbane
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 03 September 2020 at 10:18am

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 ceased eligibility for health insurance when domiciled outside Taiwan – extensive financial support arrangements – visa applicant lived in sponsor’s home in Taiwan – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
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 7 March 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 was born in Taichung City, Taiwan on 1 November 1929. She was 87 years old at the time of application, and is 91 years old at the time of decision. Her husband died on 23 January 2001. She has three children, a daughter (Hsu Tzu-Han, the sponsor) who lives in Australia, and two sons, one of whom lives in China and the other in Taiwan.
The applicant first travelled to Australia in October 2003 on a Visitor visa. She travelled and spent time here nearly every year after this, on Visitor visas. She spent around seven months here from 11 October 2012 to 15 May 2013, three months from 22 November 2012 to 14 February 2015, and three months from 28 November 2015 to 20 February 2016. She returned to Australia on 21 February 2016, and applied for the visa on 11 May 2016. Since applying for the visa, she has departed Australia twice, with the sponsor, from 15 July 2017 to 30 August 2017, and from 25 April 2018 to 27 September 2018.
At the time of application, 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…

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 Hsu Lee (Migration)

Details

AGLC: Hsu Lee (Migration) [2020] AATA 4810
Case: [2020] AATA 4810
Decision Date: 3 September 2020

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 she was an aged dependent relative of her daughter, Hsu Tzu-Han, an Australian citizen. The decision was made by Adrienne Millbank, a Member of the Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the definition of an "aged dependent relative" as defined in the Migration Regulations 1994. This required determining if the applicant was a "relative" of an Australian citizen, if she had a spouse or de facto partner, and crucially, if she had been dependent on her Australian relative for a reasonable period and remained so dependent at the time of application and decision. The Tribunal also considered the meaning of "dependent" under regulation 1.05A, including the requirement of being wholly or substantially reliant on the sponsor for basic needs and that this reliance must be greater than reliance on any other source.

The Tribunal found that the applicant met the criteria of being a "relative" of an Australian citizen and that she did not have a spouse or de facto partner, as her husband had died in 2001 and there was no evidence of a subsequent partner. The Tribunal also considered the definition of "dependent" in regulation 1.05A, noting that "substantial period" should be interpreted as a "reasonable period" and that the concept of dependency does not imply necessity or lack of choice. While the case text does not detail the Tribunal's specific findings on the dependency criteria, it indicates that further consideration was required.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction 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 Hsu Tzu-Han, who the applicant claims is her 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 Hsu Tzu-Han is an Australian citizen, 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. 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? Evidence was provided in the form of a household registration transcript that the applicant’s husband died in Taiwan on 23 January 2001. There is no information before the Tribunal to indicate that the applicant has had a partner since the death of her husband. Subparagraph (a) of the definition of ‘aged dependent relative’ is therefore 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, as noted, 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). 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: Huynh v MIMIA (2006) 152 FCR 576 at [43].

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;·cl.838.221 of Schedule 2 to the Regulations.Adrienne MillbankMember

Ratio Decidendi

Legal Principle Established

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