Huang (Migration) - [2020] AATA 5406

Huang (Migration) [2020] AATA 5406 (22 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Ju Xun Huang
VISA APPLICANTS:  Ms Yanping Huang
Mr Haopeng Rong
CASE NUMBER:  1906160
DIBP REFERENCE(S):  OSF2010/071810
MEMBER:Justin Owen
DATE:22 December 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 22 December 2020 at 2:48pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining Relative) – member of family unit – second applicant adult son of first applicant – dependent child or near relative – dependant for substantial period before decision – son traumatised by father’s sudden death – depression and claimed incapacity for study or work – credibility – mother’s and son’s contradictory evidence on incapacity and finances – significant period of voluntary work and some study – little evidence of financial support or assessment and treatment of mental health – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), rr 1.03(b)(ii), 1.05A(1), 1.12(1)(b), 1.15(1)(c), (2)(b)(i) Schedule 2, cls 115.211, 115.221, 115.321
CASES
Ignatious v MIMIA [2004] FCA 1395
Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241
MIMIA v Hidalgo [2005] FCAFC 192
Scargill v MIMIA [2003] FCAFC 116
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 28 February 2019 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visa on 23 April 2010. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the visa applicants are seeking to satisfy the criteria for the grant of a Subclass 115 visa which requires the primary visa applicant to be the remaining relative of an Australian relative. The criteria for a Subclass 115 visa are set out in Part 115 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.115.321.
The delegate refused to grant the visas on the basis that cl.115.321 was not met because she was not satisfied the secondary applicant, Mr Haopeng Rong, was a ‘member of the family unit’ (as defined at Regulation 1.12) of the primary visa applicant, Ms Yanping Huang, at the time of decision. The delegate refused to grant the primary visa applicant Ms Yanping Huang the visa on the basis that cl.115.221 was not met because she found the primary visa applicant had a near relative – being the secondary applicant – who was not usually resident in Australia and not an Australian citizen, Australian permanent resident or eligible New Zealand citizen at the time…

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 Huang (Migration)

Details

AGLC: Huang (Migration) [2020] AATA 5406
Case: [2020] AATA 5406
Decision Date: 22 December 2020

CaseChat Overview and Summary

This matter concerned an appeal by visa applicants against a decision to refuse them Other Family (Migrant) (Class BO) visas, specifically Subclass 115 (Remaining Relative). The primary applicant sought to establish that they were a remaining relative of an Australian citizen, while the secondary applicant, their adult son, claimed to be dependent on the primary applicant and not a "member of the family unit" or a "near relative" as defined by the Migration Regulations 1994. The case was heard by Senior Member Justin Owen of the Administrative Appeals Tribunal.

The central legal issues before the Tribunal were whether the secondary applicant, a 31-year-old son, was a "dependent" of the primary applicant for a "substantial period" prior to the decision, and consequently, whether he qualified as a "member of the family unit" under the Regulations. If the secondary applicant was not found to be dependent, the Tribunal also considered whether he would be classified as a "near relative" of the primary applicant, which would impact the primary applicant's eligibility under regulation 1.15(1)(c) of the Migration Regulations 1994.

The Tribunal's reasoning focused on the evidence presented regarding the secondary applicant's claimed dependency, including his alleged depression and incapacity for study or work following his father's death. However, the Tribunal found inconsistencies and a lack of substantiation in the evidence provided by both the mother and son concerning their financial situation and the son's alleged incapacity. The Tribunal noted the son's voluntary work and some study, alongside a lack of evidence of financial support or professional assessment and treatment for his mental health. Ultimately, the Tribunal concluded that the applicants had not satisfied the criteria for the visa.

The Tribunal affirmed the decision not to grant the visa applicants the Other Family (Migrant) (Class BO) visas.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The visa application was made on the basis that the primary visa applicant is the remaining relative of Mr Ju Xun Huang, who the primary visa applicant claims is their Australian relative. For the purposes of this application, ‘Australian relative’ means a ‘relative’ of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen: r.1.03. ‘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). The secondary applicant claimed to be ‘dependent’ upon the primary visa applicant and subsequently not a ‘member of the family unit’ of the primary visa applicant as defined at r.1.12 and a ‘near relative’ of the primary visa applicant. Regulation 1.15(1) requires that a visa applicant has no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens. ‘Near relative’ for these purposes is defined in r.1.15(2) of the Regulations and means a person who is a parent, brother, sister, step parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the applicant or of their spouse or where relevant, de facto partner. It also includes a child, or step-child, of the applicant or their spouse or de facto partner who either: has turned 18 and is not a ‘dependent child’; or has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or their spouse or partner. The issues before the Tribunal are, is the secondary applicant, who is the 31-year old son of the primary visa applicant living in PR China, a ‘dependent’ of the primary visa applicant at the time of decision and for a ‘substantial period’ previous to this time. If the secondary applicant is found not to be a ‘dependent’ as defined at regulation 1.05A of the primary visa applicant, then he will not be considered a ‘member of the family unit’ of the primary visa applicant as defined at regulation 1.12. If he is found not to be a ‘member of the family unit’ of the primary visa applicant, then he will not satisfy cl.115.321. If the secondary applicant is not found to be a ‘dependent’ or a ‘dependent child’ of the primary applicant as defined at regulation 1.03, and instead found to be a ‘near relative’ of the primary visa applicant, the primary visa applicant will subsequently not meet reg.1.15(1)(c) that requires that at the time of decision, an applicant must continue to have no near relatives, other than near relatives who are usually resident in Australia and are Australian citizens, Australian permanent residents or eligible New Zealand citizens. REASONS Secondary applicant Mr Haopeng Rong 115.32 Criteria to be satisfied at time of decision

Decision

Reasons for decision

The evidence before the Tribunal indicates that the primary visa applicant was born on 24 February 1966. The Tribunal finds that the primary visa applicant is not entitled to the grant of Subclass 114 (Aged Dependent Relative) visa as the primary visa applicant is not old enough to be granted an age pension under the Social Security Act 1991. Therefore, the Tribunal is not satisfied that the primary visa applicant meets the definition of the term ‘aged dependent relative’ in r.1.03 for cl.114.211 of Schedule 2 to the Regulations.DECISION The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.Justin OwenSenior MemberATTACHMENT - Extracts from the Migration Regulations 19941.15 Remaining relative(1)An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:(a)the other person is a parent, brother, sister, step-brother or step-sister of the applicant; and(b)the other person is usually resident in Australia; and(c)the applicant, and the applicant’s spouse or de facto partner (if any), have no near relatives other than near relatives who are:(i)usually resident in Australia; and(ii)Australian citizens, Australian permanent residents or eligible New Zealand citizens; and(d)if the applicant is a child who:(i) has not turned 18; and(ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas:at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.(2)In this regulation:near relative, in relation to an applicant, means a person who is:(a)a parent, brother, sister, step-brother or step-sister of the applicant or of the applicant’s spouse or de facto partner (if any); or(b)a child (including a step-child) of the applicant or of the applicant’s spouse or de facto partner (if any), being a child who:(i)has turned 18 and is not a dependent child of the applicant or of the applicant’s spouse or de facto partner (if any); or(ii)has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant’s spouse or de facto partner (if any).

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.Justin OwenSenior MemberATTACHMENT - Extracts from the Migration Regulations 19941.15 Remaining relative(1)An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:(a)the other person is a parent, brother, sister, step-brother or step-sister of the applicant; and(b)the other person is usually resident in Australia; and(c)the applicant, and the applicant’s spouse or de facto partner (if any), have no near relatives other than near relatives who are:(i)usually resident in Australia; and(ii)Australian citizens, Australian permanent residents or eligible New Zealand citizens; and(d)if the applicant is a child who:(i) has not turned 18; and(ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas:at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.(2)In this regulation:near relative, in relation to an applicant, means a person who is:(a)a parent, brother, sister, step-brother or step-sister of the applicant or of the applicant’s spouse or de facto partner (if any); or(b)a child (including a step-child) of the applicant or of the applicant’s spouse or de facto partner (if any), being a child who:(i)has turned 18 and is not a dependent child of the applicant or of the applicant’s spouse or de facto partner (if any); or(ii)has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant’s spouse or de facto partner (if any).