Kweh (Migration) - [2021] AATA 2562

Kweh (Migration) [2021] AATA 2562 (26 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Teow Soo Kweh
CASE NUMBER:  1835717
HOME AFFAIRS REFERENCE(S):          CLF2017/54806
MEMBER:Andrew McLean Williams
DATE:26 May 2021
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.

Statement made on 26 May 2021 at 10:14am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – dependency – financial support to meet applicant’s basic needs for food, clothing and shelter – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A; Schedule 2, cls 838.212
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 the review of a decision made by a delegate of the Minister for Home Affairs, made on 22 November 2018, refusing to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’).
The applicant is a 78 year old widow, from Malaysia. The applicant’s husband died in 1971 and she never re-partnered. The applicant’s youngest son, Mr Chon Teik Khor, has sought to sponsor his mother to come and live out her remaining years with he and his wife and children in Australia, on an Aged Dependent Relative visa.
The applicant applied for the visa on 26 July 2017. In general terms, to now be eligible the applicant must show that she is the aged dependent relative of an Australian citizen, permanent resident or an eligible New Zealand citizen.
The specific criteria for a Subclass 838 visa are as set out in Part 838 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Relevantly to this matter, the primary criteria that must met now include those in cl.838.212.
The delegate refused to grant the visa on the basis of the delegate not being satisfied on the available evidence that the applicant had been dependent on her son - who is an Australian permanent resident - during the three years immediately preceding the lodgement of the aged dependent relative vias application, which was lodged on 26 July 2017.
The applicant appeared before the Tribunal on 20 May 2021 to give evidence and make submissions. The Tribunal also received oral evidence from Mr Chon Teik Khor, who is the applicant’s son and sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Teo Chiew and English languages.
The applicant was represented in relation to the review by her registered migration agent Ms Cindy Zhao of ‘No Borders’ Migration (MARN 1575764). Ms Zhao also attended the Tribunal hearing and had prepared detailed written submissions (dated 16 November…

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 Kweh (Migration)

Details

AGLC: Kweh (Migration) [2021] AATA 2562
Case: [2021] AATA 2562
Decision Date: 26 May 2021

CaseChat Overview and Summary

This matter concerned an appeal by an applicant for an Other Family (Residence) (Class BU) visa, specifically a Subclass 838 (Aged Dependent Relative) visa, before the Administrative Appeals Tribunal. The applicant sought to establish that she was an aged dependent relative of her sponsor, an Australian permanent resident.

The Tribunal was required to determine whether the applicant met the definition of an "aged dependent relative" as defined in regulation 1.03 of the Migration Regulations 1994. This involved assessing whether the applicant was a "relative" of an Australian citizen, permanent resident, or eligible New Zealand citizen, whether she had a spouse or de facto partner, whether she was of an age to be granted an aged pension under the Social Security Act 1991, and crucially, whether she had been dependent on the Australian relative for a reasonable period and remained so dependent.

In its reasoning, the Tribunal found that the applicant, a widow aged 78, qualified as a "relative" of her sponsor, who was an Australian permanent resident. The Tribunal also confirmed that the applicant met the age requirement, having been 73 at the time of application, and that she did not have a spouse or de facto partner. The central issue revolved around the dependency requirement. The Tribunal referred to regulation 1.05A(1), which defines dependency as being wholly or substantially reliant on the relative for financial support for basic needs, and that this reliance must be greater than reliance on any other source. The Tribunal noted the apparent tension between the "reasonable period" requirement in regulation 1.03(b) and the "substantial period" in regulation 1.05A, a tension that courts have harmonised to mean no more substantial than a reasonable period. The Tribunal also clarified that the definition of dependency does not imply necessity or lack of choice.

Ultimately, the Tribunal concluded that the applicant met certain criteria for the Subclass 838 visa, specifically clause 838.212. However, it remitted the application to the Department for reconsideration by a delegate to consider the remaining criteria for 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

In this light the Tribunal concludes that the matter should now be remitted to the Department for reconsideration by a delegate in light of the Tribunal’s conclusion.CONSIDERATION OF CLAIMS AND EVIDENCEIs 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 reg 1.03 of the Regulations. A person will be an ‘aged dependent relative’ of another if: they are a ‘relative’ within the meaning of reg 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 (Cth). In this case the applicant is a widow, now aged 78 years. The applicant is the mother of her sponsor Mr Chon Teik Khor, who is an Australian permanent resident. As such she qualifies as a ‘relative’ of an ‘Australian relative’. Given that the applicant was aged 73 at the time of her making the visa application she was also of an age at which, were she an Australian citizen she could be granted an aged pension under the Social Security Act 1991. As such the age requirements specified in 1.03(c) to be eligible for this category of visa have been satisfied, as well.Does the applicant have a spouse or de facto partner? As indicated above, the evidence reveals that the applicant is a widow, now aged 78. The applicant’s husband died many years ago, in 1971, when the applicant was aged just 27. The applicant never re-married, and does not have a de facto partner. For these reasons subparagraph (a) of the definition of ‘aged dependent relative’ is met both at the time of application and now at 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 in reg 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: reg 1.05A(1). Regulation 1.03(b) speaks of the requirement for dependency to have been for a ‘reasonable period’. Under policy, this is taken to mean for at least three years. Yet r.1.05A, which gives meaning to the term ‘dependent’ for purposes of r.1.03 then goes on to speak of financial support for a ‘substantial period’, such that there is an apparent tension between r.1.03(b) and r.1.05A. That tension has been harmonised by the courts as reference to a ‘substantial period’ in reg 1.05A has been judicially determined to mean for a period that is no more substantial than a ‘reasonable period’: Huang v MIMIA [2007] FMCA 720 at [47]. Further, the proper construction of ‘dependent’ in reg 1.05A does not carry any implication of the notion of necessity or lack of choice reg 1.05A: 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.Andrew McLean WilliamsMember

Ratio Decidendi

Legal Principle Established

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