Le (Migration) - [2022] AATA 5195

Le (Migration) [2022] AATA 5195 (3 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Thi Minh Hoa Le
REPRESENTATIVE:  Mr Li Dennis Shen
CASE NUMBER:  2102919
HOME AFFAIRS REFERENCE(S):          CLF2015/21100
MEMBER:Peter Vlahos
DATE:3 August 2022
PLACE OF DECISION:  Melbourne
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.

This Statement was made on 3^rd August 2022 at 3.00PM.
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – Federal Circuit Court remittal – aunt of the sponsor – dependency requirements – wholly or substantially reliant on financial support to meet basic needs – periodic but consistent money transfers – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.05A; Schedule 2, cl 838.212, 838.221
CASES
Huang v MIMIA [2017] FMCA 720
Huynh v MIMIA (2006) 152 FCR 576
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Vo v Minister for Home Affairs [2019] FCAFC 108
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 and Border Protection on 27 November 2017 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 7 April 2015. 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 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl 838.212.
The delegate refused to grant the visa on the basis that cl 838.212 was not met because the delegate was not satisfied the evidence before him established that the applicant met the dependency requirements, as provided for in reg. 1.05A.
On 25 February 2021 this matter previously heard and determined by the Tribunal (differently constituted) (case file no. 1731752)[1] was remitted to the Tribunal by order of the Federal Circuit Court because the Tribunal had caused a jurisdictional error by failing to consider relevant evidence and claims in the applicant’s submissions of 9 September 2020, in relation to the applicant’s sale of her business and in particular, the contract of sale dated 20 September 1996. This evidence was considered by the Court as important…

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.

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Details

AGLC: Le (Migration) [2022] AATA 5195
Case: [2022] AATA 5195
Decision Date: 3 August 2022

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 an Australian citizen. The Federal Circuit Court had previously remitted the matter for reconsideration.

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, and specifically, whether she was wholly or substantially reliant on her Australian relative for financial support to meet her basic needs at the time of application and at the time of decision. The Tribunal was also required to consider whether the applicant met the criteria for the visa as set out in Part 838 of Schedule 2 to the Regulations.

The Tribunal noted that the applicant met the criteria of not having a spouse and being of an age to be granted an aged pension under the Social Security Act 1991. The central question revolved around the dependency requirement. The Tribunal considered the definition of "dependent" in regulation 1.05A(1), which requires reliance on the relative for financial support to meet basic needs, and that this reliance must be greater than reliance on any other person or source. The Tribunal found that the applicant's reliance on her Australian relative was established through periodic but consistent money transfers, which supported her basic needs.

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

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Decision

Reasons for decision

Given the finds above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclause 838. 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.Peter VlahosMember

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCERelevant Law At the time the application was made, 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 dependant 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). 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 definition ‘dependent’ as it applies to this application is set out 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 [2017] FMCA 720 at [47]. Further, the proper construction of ‘dependent’ in r.1.1.05A does not carry any implication of the notion of necessity or lack of choice in r.1.1.05A: Huynh v MIMIA (2006) 152 FCR 576 at [43]. Is the applicant an aged dependent relative of an Australian relative? The applicant claimed in her application that she had never been married. There is nothing to contradict that evidence. The Tribunal is satisfied the applicant does not have a spouse and she meets subparagraph (a) of the definition of ‘aged dependent relative’. The applicant was born in March 1950 and was 65 years of age when the application was made (she is now 72 years of age). The applicant is old enough to be granted an aged pension under the Social Security Act 1991. Sub-paragraph (c) of the definition of ‘aged dependant relative’ is met. The issue is whether the applicant is a dependent relative of her Australian relative when the application was made. Primary decisionThe Delegate’s decision