Janse Van Rensburg (Migration) - [2021] AATA 2816

Janse Van Rensburg (Migration) [2021] AATA 2816 (15 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Maria Helena Plippina Janse Van Rensburg
CASE NUMBER:  1902325
DIBP REFERENCE(S):  CLF2016/42570
MEMBER:Christine Kannis
DATE:15 June 2021
PLACE OF DECISION:  Perth
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 15 June 2021 at 6:38am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – definition of ‘aged dependent relative’ is met – applicant was “wholly or even substantially” reliant on her sponsor– decision under review remitted

LEGISLATION
Migration Act 1958, ss 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
Vo v Minister for Home Affairs [2019] FCAFC 108
Re Drake v Minister for Immigration an Ethnic Affairs (1979) 2 ALD 634
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 29 January 2019 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 applied for the visa on 16 November 2016. At that time, 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 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.838.212, which requires that the applicant is an aged dependent relative of an Australian relative.
The delegate refused to grant the visa on the basis that cl.838.212 was not met. The delegate was not satisfied that the applicant had been wholly or substantially reliant on the sponsor for a substantial period, as required to meet the definition of ‘dependent’ in r.1.05A(1)(a).
The applicant appeared before the Tribunal on 13 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence the applicant’s daughter, Ms Petronella Johanna Robbetze and her son-in-law, Mr Deon Robbetze. The Tribunal was assisted by an interpreter in the Afrikaans 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 matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa application was made on the…

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 Janse Van Rensburg (Migration)

Details

AGLC: Janse Van Rensburg (Migration) [2021] AATA 2816
Case: [2021] AATA 2816
Decision Date: 15 June 2021

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 this visa on the basis that she was the aged dependent relative of Ms Petronella Johanna Robbetze, an Australian citizen and the applicant's daughter. The decision was made by Christine Kannis, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the definition of an "aged dependent relative" as defined in regulation 1.03 of the Migration Regulations 1994. This definition requires, among other things, that the applicant be a "relative" of an Australian citizen, permanent resident, or eligible New Zealand citizen, not have a spouse or de facto partner, have been dependent on the Australian relative for a substantial period and remain so dependent, and be of an age to receive an aged pension.

The Tribunal found that the applicant was indeed the mother of the sponsor and therefore a "relative" for the purposes of the relevant clauses. It was also satisfied that the applicant was widowed and had not remarried or entered into a de facto relationship, thus meeting the criterion regarding marital status. Crucially, the Tribunal concluded that the applicant was "wholly or even substantially" reliant on her sponsor for financial support to meet her basic needs, satisfying the dependency requirement.

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 Petronella Johanna Robbetze, who the applicant claims is their 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, Ms Petronella Johanna Robbetze, 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 a ‘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. The Tribunal is satisfied on the evidence before it that the applicant is the mother of the sponsor, an Australian citizen. The Tribunal is satisfied that the sponsor is the daughter of the applicant. In this case, the applicant is the ‘relative’ of an Australian relative for the purposes of cl.838.212 and cl.838.221. Does the applicant have a spouse or de facto partner? The applicant was married to Mr Hermanus Petrus Christian Janse Van Rensburg. A Marriage Certificate was provided evidencing the date of marriage was 20 September 1958. The applicant’s husband died on 19 August 2005. The applicant provided a copy of her husband’s Death Certificate. The applicant has not remarried. The applicant has previously signed a statutory declaration stating she has remained single since her husband’s death. The Tribunal accepts the applicant’s statement. 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 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 support, for 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).

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 Christine KannisMember

Ratio Decidendi

Legal Principle Established

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