Le (Migration) - [2020] AATA 3860

Le (Migration) [2020] AATA 3860 (15 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Thi Minh Hoa Le
CASE NUMBER:  1731752
DIBP REFERENCE(S):  CLF2015/21100
MEMBER:Kira Raif
DATE:15 September 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 15 September 2020 at 4:16pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependant Relative) – dependant relative – dependency – money transfers – cash and bank accounts – ownership of land and factory – no explanation of non-eligibility for pension – nobody to provide care in home country – some degree of reliance but insufficient documentary evidence overall – credibility – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A; Schedule 2, cls 838.111, 838.212, 838.221
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 27 November 2017 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 is a national of Vietnam, born in March 1950. She made the application for the visa on 7 April 2015. The delegate refused to grant the visa on the basis that cl.838.212 was not met because the delegate was not satisfied the applicant was a dependent relative of her Australian relative. The applicant seeks review of the delegate’s decision.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant appeared before the Tribunal on 22 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and other witnesses nominated by the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Relevant 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…

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) [2020] AATA 3860
Case: [2020] AATA 3860
Decision Date: 15 September 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Ms Le for an Other Family (Residence) (Class BU) visa, specifically a Subclass 838 (Aged Dependant Relative) visa. The core of the dispute concerned whether Ms Le met the criteria for a dependant relative, with particular focus on her alleged financial and personal dependency on her sponsor.

The Tribunal was required to determine whether Ms Le was a dependant relative as defined by the migration regulations. This involved assessing the extent of her financial reliance on her sponsor, including the significance of money transfers, the ownership of land and a factory, and the absence of any explanation for her non-eligibility for a pension in her home country. Furthermore, the Tribunal had to consider whether there was anyone in her home country capable of providing her with care, and whether she demonstrated a sufficient degree of reliance on her sponsor.

In its reasoning, the Tribunal found that while there was some degree of reliance, the documentary evidence provided was insufficient to establish overall dependency. The Tribunal noted inconsistencies in the evidence and issues with the applicant's credibility. Consequently, the Tribunal affirmed the decision not to grant Ms Le the Subclass 838 visa, finding that she did not meet the prescribed criteria. The Tribunal also noted that there was no material to suggest she met the criteria for any other visa subclasses applied for.

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

For the reasons above, the Tribunal finds that the applicant does not meet the criteria for a Subclass 838 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought. DECISION The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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