Lee (Migration) - [2021] AATA 1197

Lee (Migration) [2021] AATA 1197 (16 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Kwai Fong Lee
CASE NUMBER:  1822989
HOME AFFAIRS REFERENCE(S):          CLF2016/90947
MEMBER:Nicholas McGowan
DATE:16 March 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made 16 March 2021 at 1:48pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – aged dependent relative of an Australian relative – dependent on the Australian relative for a reasonable period – wholly or substantially reliant on the sponsor – substantial bank accounts – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2 cls 838.111, 838.212, 838.221; rr 1.03, 1.05
Social Security Act 1991
CASES
Huang v MIMIA [2007] FMCA 720
Huynh v MIMIA (2006) 152 FCR 576
MINISTERIAL INTERVENTION

This Tribunal passionately refers this case to the Minister pursuant to s.351 of the Act.
This Tribunal is satisfied that because the applicant does not meet the requirements (as set out below) she has been unable to meet the criteria for the grant of the visa.
The applicant is an 84-year-old lady and much-loved member of her family (which is small though clearly take care and responsibility for her). The applicant lives with her 99-year-old sister, and 62-year-old niece (who cares for them all). Both the 99-year-old sister, and 62-year-old niece, are Australian permanent residents.
The applicant is one of nine children, though only her 99-year-old sister (in Australia) and a brother who is 91 (who lives in Singapore) are alive.
The applicant travelled to Australia in 2016 and has lived with her 62-year-old niece and 99-year-old sister ever since.
The applicant has never been married or been in a de facto relationship and has lived a somewhat rudimentary (humble) life.
The applicant has deteriorating eyesight and becomes more easily confused and disorientated with age according to the niece’s oral evidence provided during the hearing before the Tribunal held 16 March 2021. The niece (sponsor) puts the view that her aunt (the applicant) would find living by herself in Singapore extremely difficult at this stage of life, particularly given much of her life is supported by herself and those around her. The Tribunal accepts this at face value and finds the sponsor’s evidence in this regard to be heartfelt, and candid, and therefore reliable.
The Tribunal considers that the circumstances of this case will raise the following matters:
Strong compassionate circumstances such that a failure to recognise them would result in emotional hardship to several Australian permanent residents.
Having regard to the circumstances of the applicant and sponsor as outlined above and having considered the Ministerial guidelines relating to the Minister's discretionary power under section 351 set out in PAM3 "Minister's guidelines on ministerial powers (sections 345, 351, 417, 454 and 501J)" this Tribunal considers this case should be referred to the Minister.

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 Lee (Migration)

Details

AGLC: Lee (Migration) [2021] AATA 1197
Case: [2021] AATA 1197
Decision Date: 16 March 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 to establish that she was an aged dependent relative of her niece, Ms Chan Wei Yin, who was a settled permanent resident of Australia and the sponsor for the visa. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for this visa subclass.

The primary legal issues before the Tribunal were whether the applicant was an "aged dependent relative" of an Australian relative, as defined by the Migration Regulations 1994. This involved assessing whether the applicant had a spouse or de facto partner, whether she had been dependent on the Australian relative for a reasonable period and remained so dependent, and whether she was of an age to be granted an aged pension. Crucially, the Tribunal had to determine the meaning of "dependent" in this context, which required assessing whether the applicant was wholly or substantially reliant on her sponsor for financial support for basic needs, and whether this reliance was greater than on any other source.

The Tribunal accepted the claimed familial relationship between the applicant and her niece based on the documentary evidence provided. It also found that the applicant met the criteria of not having a spouse or de facto partner. However, the Tribunal found that the applicant did not meet the criterion of being dependent on her sponsor. Despite the applicant's arguments and evidence presented at a hearing, including statutory declarations, the Tribunal concluded that the applicant's substantial bank accounts indicated she was not wholly or substantially reliant on her niece for financial support for her basic needs, and that her reliance on her sponsor was not greater than her reliance on other sources of support.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 838 visa, finding that she did not meet the prescribed criteria for the visa sought.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As the Tribunal was unable to make a favourable decision on the information before it alone, the applicant was invited to attend a hearing and provide any evidence or arguments. The applicant appeared before the Tribunal on 16 March 2021 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent.CONSIDERATION OF CLAIMS AND EVIDENCE The visa application was made on the basis that the applicant is the aged dependent relative of her niece (and sponsor for the visa) Ms Chan Wei Yin. Relative is defined in reg 1.03 and means a ‘close relative’ which includes niece or nephew (or their step equivalents). In this case the evidence held by the department is that Ms Yin is a settled permanent resident of Australia (at ‘time of application’) and is the applicant’s niece based on copies of her mother’s birth certificate, her own birth certificate and the applicant’s birth certificate, each of which were provided to the department previously and none of which has raised concerns from the department as to their authenticity and therefore reliability. The Tribunal has proceeded accordingly, accepting the claimed relationship on the available evidence and mindful relevant documents may be subject (prior to the grant of any visa) to verification or integrity checks by the Department. It follows therefore, that the applicant is the ‘relative’ of an Australian relative for the purposes of cl 838.212.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 reg 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 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).Does the applicant have a spouse or de facto partner? The applicant has stated she has never been married or in a de facto relationship. The applicant has provided a statutory declaration to the department which states same. There is no evidence or claim before the Tribunal which casts doubt upon these claims. For these reasons subparagraph (a) of the definition of ‘aged dependent relative’ is met both at the ‘time of application’ and 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).

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.Nicholas McGowanMember

Ratio Decidendi

Legal Principle Established

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